You’ve been working on your invention and you look to see if someone else has already patented the idea. You find a patent similar to your product. Now, you don’t know if you can still make and sell your product without infringing on the patent. Are you infringing on the other person’s patent? Can you get a patent on your product?
Are you infringing on the other person’s patent?
Just because someone else has a patent on their product and that product is similar to your idea doesn’t mean that you are infringing on their patent. You have to conduct a noninfringement analysis of the patent. Here is an article on how to determine patent infringement.
The first step in the noninfringement analysis is finding all of the patents related to that one patent by a claim of priority. Put simply, you have to find all of the patents in the family. Next, you have to read through all of the claims and the prosecution file histories of all of the patents to determine the scope of patent protection afforded under each of the patents.
Can you get a patent on your product?
If your product isn’t infringing on the other person’s patent, then you can go to the next step. Can you get a patent on your own product? To find out if you can get a patent on your invention, you first need to determine if the patent that you just cleared anticipates or makes obvious your invention. If yes, then the analysis stops here. If so, then I recommend doing an informal patent search yourself first before hiring a patent attorney to conduct one for you. After all, why spend money if you can find something really quick on the internet?
If you still can’t find anything like your idea, then it’s time to hire a patent attorney to conduct a formal patent search. Oftentimes, a patent attorney will do a better job at finding prior art references. The patent attorney can also give you the cost estimates to conduct the noninfringement analysis, the patent search, and the patent.
How to find patents related to your product?
You can do a broad-based search for other patents related to your product by doing a patent search. This search gives you a sampling of related patents and isn’t sufficient to give you any significant confidence that you aren’t infringing on another’s patent. To do a complete search, you’d have to look at all patents within one or more classes and subclasses of inventions which would cost hundreds of thousands of dollars.
Alternatively, if you copied another company’s product, it is a good idea to look to see if that product has been patented. To do that, you would conduct an assignee search. You can learn more about how to determine if the product has a patent.