You may not be able completely avoid accusations of patent infringement. But you can minimize the risk and resolve disputes before they turn into costly litigation.
Risk management begins at the very beginning of the patent lifecycle. A landscape search helps identify the general state of the art in a given field and allows you to find white space into which to steer your invention.
Before a new product launch, clearance searches and freedom to operate (FTO) opinions help identify whether your product infringes any existing patents. If so, a “design around strategy” may mitigate the risk of infringement.
If you receive a cease and desist letter accusing your product of infringing a competitor’s patent, or a demand for a licensing fee, a thorough up-front analysis is crucial to minimizing the risk of litigation. Such an analysis includes a validity search and opinion to determine if the competitor’s patent is valid and enforceable (regardless of whether the U.S. Patent and Trademark Office issued the patent).
Even if the competitor’s patent is valid, an infringement analysis will show whether your product creates a legal liability. Often, a detailed comparison of your product’s features to the detailed patent claims will reveal no actual infringement.
If there is significant risk of infringement, then it is important to assess the amount of your exposure so that you do not overpay for licensing fees. And of course, if litigation is simply unavoidable, a well-developed strategy will help minimize the cost and bring about a resolution as quickly as possible.