Few Understand the Reach of Intellectual Property Protection and How to Avoid Costly Infringement *
“It’s a free country!” my teenager likes to exclaim.
I agree, of course. Unfortunately, I often work and talk with well-meaning folks who have no idea that they may be overstepping their “Freedom to Operate” by infringing on patents in their daily business.
I believe there are so many regulations, laws and other rules that it can be difficult for people and businesses to keep up with their legal obligations. This situation is very common for many entrepreneurs and newer companies that don’t realize the extent of Intellectual Property laws.
How many inventors, manufacturers, resellers worry about infringing upon patents?
Based upon my own random sampling, not many who should think about their risk actually do.
As in any business decision, your patent risk severity has to be accessed, compared to the severities of your other risks, and managed. In terms of patents, the probability and severity of infringement risk is elevated as the business grows.
Simple. Probability says that as your company grows and becomes better known by its competitors, they’re more likely to become aware of infringement. Similarly, the severity will grow as sales for any infringing product increase and because more customers could be disrupted due to production delays or halts.
Do realize that the severity of non-compliance is not just the court judgments should you lose as the attorney fees and dealing with the time and frustrations of a lawsuit can make avoiding infringement a compelling reason to be more diligent.
I’ll save the quantification of severity (damages, time required, and odds of winning) discussion for the litigation attorneys and focus on minimizing your risk.
Risky business lessons
To understand how many trip hazards are present in the patent space, it helps to realize how many enforceable patents exist. In the U.S. alone, 303,000 patents were granted in 2013.  Add in the other still enforceable U.S. patents over the past 20 years or so, and there’s a lot of potential for one or more of these U.S. patents to fully or partially encapsulate your existing or future product.
Also, if you are a manufacturer, seller, importer, distributor, or reseller of items in other countries with Intellectual Property protection, you could be at more risk since even smaller countries such as Afghanistan, Djibouti, and Tonga protect their citizen’s Intellectual Property. 
When and how should you investigate your risk?
A “Freedom to Operate,” also known as a “Clearance Search,” is the recommended step.
Many of our newest clients come to us so that we can investigate clearance…just before they start production.
While it’s good that they are interested in their risk, we think the best time for a clearance search is when the idea for a new product is first considered.
Even better, learn from our larger clients and include a clearance search as a very early stage gate in your product development pipeline. This early review will identify problems so that your engineering team can make design changes to avoid infringement, have the option to license the patent or, in the worst case, you can terminate the product before making substantial investments.
Once is not enough
A quick refresh of infringement research is appropriate if changes have been made to the original concept. It is also appropriate if many months have passed since many patent applications aren’t published until 18 months after the filing date and may not appear as a problem until after you’ve started production.
Did you catch that I mentioned “patent applications”? We feel that recent patent applications should be included in infringement research since these could turn into patents soon.
Next, consider each individual feature of your product and how the various features interrelate. Should your team decide that anything may have been novel within the past 30 or more years, it is wise for you to investigate further.
For those of you who are very cost conscious or prefer to do your own resources, at least use free resources such as USPTO or Google to find out if any patents exist for even remotely similar features. This is very risky, but it is certainly better than doing nothing at all.
Should anything show up in your results as being even remotely concerning, seek out professional IP research and an IP attorney to interpret your risk severity since finding even one related patent could be the tip of the iceberg. We urge caution as most people are not experts in this area or do not have access to the professional grade tools to do a thorough job. Remember, the whole idea of this exercise is to reduce your risk!
Tips to remember:
• The final assessment of how much legal risk you incur for your product versus similar active patents rests in the hands of Intellectual Property attorneys and agents.
• It doesn’t matter whether you are right or wrong as the overall objective to stay out of a legal battle as these are expensive, time-consuming, highly distracting from your desired business activities, and can interrupt sales to clients who depend on you.
• In the business sense, professional Freedom to Operate research is cheap insurance.
• Ensure that Clearance Searches consider the most recent four to five years of patent applications as these are the most likely to turn into patents.
• Many companies we work with include a Clearance Search in their earliest phases of product development to capture and resolve potential problems.
• Don’t assume that licensing the patents of others makes you safe from infringement as they may not have done their due diligence.
• An 18-month publication delay is common for many of the world’s patent authorities, including the USPTO, so consider an occasionally updated report or setting up a focused IP Alert to monitor patenting activities related to your product.
In summary, what you don’t know could hurt you, but you’ll never know if you’re at risk until you look.
* This post is not providing legal advice, consult with an IP Attorney/Agent for this information.
 U.S. Patent Statistics Chart Calendar Years 1963 – 2013
US Patent Certificate – (Unbiassed) Wikimedia
Liberty Bell – (Serguey) Wikimedia