5 major things to consider if you think your idea might be stolen.
Generally, start-ups bet on their unique idea, however are vulnerable to getting their idea stolen by others. To counter this, start-ups depend on patents for the safeguarding and rewarding for their innovation. Be it start-ups or big organizations, the onus is on the patent owners to prove that the product or service in question infringes on every portion of the claims. There is nothing like “Patent Police”.
Following are the 5 things to remember for finding potential infringers for your patents:
(image source: Pixabay)
1. Finding Potential Infringers in the jurisdiction that is covered by the patent
It is important to note that product search is more or less like Freedom To Operate Search in terms of jurisdiction. It is important to examine whether the infringing product, technology or service is offered in the jurisdiction where the patent has been filed/granted. In case you find a patent infringer in a country where the patent is not filed, the patent owner should perform a complete due diligence if it is worth to file a patent in that jurisdiction and whether intellectual property lawsuits in that particular country are worth it.
2. Make sure that the infringer has the money to pay you
While this point might sound very basic, it is very important to see that the infringer has the money to pay you. For e.g. you will find many patents infringed by VLC Media Player. However, VLC Media Player is an open source product, therefore there is no monetary benefit from it other than taking it down which is also very less likely.
3. Preparation of claim chart/Evidence of Use chart
An infringer will argue that there is no infringement. To counter these arguments and concretize your case, you should prepare a claim chart. The claim chart would enable you to counter the arguments by the infringer and additionally clear your own doubts whether the infringing product infringes each and every element of a particular claim. Therefore, the claim chart should be made for each infringed patent claim. You can send us a request for getting a sample of how a claim chart would look like and what you can expect.
4. Finding potential infringers right from the start of patent application and get claim chart prepared
This helps as if any other part of the specifications are better mapped to the infringer’s product element, the patent claims can be amended accordingly during the office action, for example, or new claims can be added from that part of the specification. Additionally, a child application can be filed to use language for the claim from that particular specification paragraph.
Generally, the patent claims should not be too narrow or detailed by focusing only on one infringer/product. The claims should be drafted in such a way that it covers the novelty in the broadest sense possible otherwise other potential infringers are easily able to bypass them. For example, very specific utility models tailored to the potential infringer could also be extracted from a broadly worded application.
5. Agreement takes precedence over confrontation
In the past we’ve seen many start-ups/small inventors who have their patents infringed by big giant corporations. What looks like a jackpot at first glance often turns out to be the beginning of an endless and expensive journey forcing small inventors to give up early. Infringers often don’t even react being confronted with their infringement waiting for a legal proceeding to start. Here’s where many small companies, start-up, private inventors already give up.
But at this point, a good preparation including claims chart analysis is worth cash money. A patent attorney (even the opposing one) can thus assess one's own chances quite quickly. For example, a potential financier of litigation costs can be found or the opposing side can be confronted with clear facts.
However, one should be aware that the opposing party will now do everything in its power to declare the patent null and void, provided that the infringement is clear. The chances of an overall positive outcome will most probably increase, if you signal your willingness to license at an early stage and do not insist on injunctive relief and damages.
