Irrespective of whether or not you have protected your product with a patent, you may still come up against Intellectual Property rights (IP rights) as soon as you launch your product onto the market.
If, for example, you have made a machine that can be used to pack Christmas trees in such a way that they stay fresh longer, you could be infringing someone else's patent. Even if you have a patent on that machine, it does not mean that you are automatically free to use or sell it. After all a patent is a 'negative right' and you could still be infringing a broader patent or a patented part of your machine.
In the case of an infringement you run the risk of having to pull your products from the market immediately and having to pay damages. If you, as an entrepreneur, do not want to run any financial risks, you will need to do your homework before you start packing those Christmas trees.
What does that homework consist of?
- Check out the competition
Buy products made by your competitors and see if they have 'patented' or 'patent pending' on them. If you cannot find anything, check the relevant supplier's website. Although it is not compulsory to state that a product is protected by a patent, a lot of companies use this as a marketing tool and/or deterrent.
- Consult a patent database
Use Google Patents or Espacenet to establish if there are any IP rights that are similar to the product you want to bring onto the market or the process you want to use. You can take a look at the patent (applications) of competitors, for instance.
- Have a Freedom to Operate study done
An FTO study can be used by a patent attorney to identify the relevant IP rights by means of a thorough investigation into relevant patents and patent applications in the countries in which you want to operate.
Your competitor has a patent
If you feel that your competitor's patent or patent application is going to stand in your way, you should contact your patent attorney because for all of the above-mentioned points it applies that, if any relevant publications or patents have been found, this does not automatically mean that you are infringing. We will be discussing this in more detail in the next BL&G.