In addition to helping businesses obtain intellectual property protection, we also assist businesses in determining whether they infringe any intellectual property rights.
Intellectual property rights are not something that the typical business works with regularly, and as such, we have seen a number of myths in this area. We clarify these below, to help you avoid potentially costly mistakes which may be associated therewith.
1. I Didn’t Copy Anyone
A patent gives the patent owner the exclusive right to exploit (e.g. make, hire, sell, use, or import) an invention. There is no requirement in the Patents Act that any actual copying take place for a product to infringe a patent. In fact, the owner of a patent need not actually sell any products for the patent to be valid.
As such, even if you do not (knowingly) copy another’s product, you may still be inadvertently infringing third party patent rights.
2. My product looks nothing like their product
The scope of a patent is defined by the patent claims, and generally relates to technical features, rather than appearance.
As such, if your product includes the technical features of the claims, it may infringe the patent, regardless of whether your product looks at all like the patentee’s product.
3. Several businesses are importing the same product
I was recently told that several businesses cannot have a patent on exactly the same product, and therefore such product cannot be validly patented.
However, such argument is flawed for several reasons. Firstly, it is difficult to know whether a patent owner is currently enforcing rights against these businesses. Typically, a cease and desist letter is first sent to an alleged infringer, upon which negotiations often take place. As none of this is typically public knowledge, it is not possible to see if this is actually taking place.
Additionally, these businesses may all have obtained a license from the patent owner, and thus be authorised to exploit the invention.
As such, the fact that multiple businesses are importing an identical product does not guarantee that the product does not infringe any patent rights.
4. I have my own patent
While a patent gives you the exclusive right to exploit your invention, it provides no guarantee that there are no other patents relating to a product. In fact, complex products are often covered by multiple patents.
If you improve an existing product by adding a new feature, there may, for example, be a patent covering the base technology.
As such, the fact that you have patent rights does not guarantee that the product does not infringe any other patent rights.
5. That cannot possibly be patented!
It is surprising how often we hear this statement, typically without any justification, and from someone without any real legal experience.
Patents may be granted for a wide range of technology, and thus not only for new machines, but also for methods. Furthermore, Innovation Patents exist in Australia (similar to petty patents/utility models in other countries), which are particularly well suited to small advances over existing technology, and do not require an inventive step.
As such, it is actually quite complex to determine whether technology is patentable, and nothing that can be done on a whim. As such, your gut is not a particularly good indicator of whether a patent has been validly granted.
Well, what can I do to ensure that I don’t infringe my competitor’s patent?
If you are concerned about a specific competitor, the cost of determining what patent rights are owned by that competitor is relatively inexpensive. This is particularly valuable when the market is dominated by a competitor, and that competitor asserts patent rights.
A more thorough search may be performed on a group of competitors, or relating to a particular technology area. A thorough search is particularly relevant prior to significant investments, such as tooling, and where individual rights holders are not easy to identify.
Depending on the scope of the search, the cost varies. As such, we suggest determining a search strategy together with a patent attorney to provide a good balance between cost and scope.
Any patents that are then identified may then be analysed, to determine whether your product may infringe the patent.