To avoid patent infringement, you need to take three steps:
- Look for relevant patents related to your product.
- Review the claims of those patents that you found.
- Modify your product to design around those patent claims to avoid patent infringement.
Look for relevant patents related to your product
Oftentimes, inventors show me their product which is based on a competitor’s product. They may have improved upon their competitor’s product, but it is nonetheless just an improvement. The best course of action is to purchase your competitor’s product and look for any patent markings on their product. Any patent number that you find on their product will be relevant and must be cleared before you launch your product.
Another way to look for relevant patents is to conduct a freedom-to-operate search. This is similar to a prior art search but covers more patents. Also, it does not look for non-patent literature and is focused solely on unexpired patents.
The freedom-to-operate search may uncover one or more relevant patents related to your product. If so, you need to review the claims of these patents to determine the breadth of coverage provided by each and every patient that you find.
Review the claims of each patent related to your product
If the patent’s claims cover your product, you need to design around those claims to avoid patent infringement.
Just because a patent discloses something similar to your product, it does not mean that you’re infringing upon that patent. You need to review the scope of patent protection afforded under that patent by reviewing the claims of the patent. It is the claim that you infringe if you do infringe.
The claims are at the back of the patent. You will find independent claims and dependent claims. They are easy to tell apart. An independent claim does not refer to any other claim, whereas dependent claims will refer to another claim. Look only at the independent claims.
If your product is missing any one element in an independent claim, your product avoids patent infringement. It’s a bit more difficult to determine than that but I think that you get the gist of it. You can read my in-depth article on how to determine if you are infringing on the claims of the patent to learn more: Avoiding Patent Infringement.
Modify your product to design around those patent claims
For claims that cover your product, you need to modify your product to avoid infringement. You need to look for limitations that you can leave out of your product yet retain the primary function or selling features.
Lay people have a misconception that if you modify your product to be 10 to 20% different compared to the patented invention, you avoid patent infringement. That is not true.
In patent law, if your product fails to incorporate just one aspect of the claimed invention, you avoid patent infringement of that claim.
As such, after you review the claims of those patents, you will find strengths and weaknesses in the claims. You need to exploit those weaknesses by not incorporating those requirements of the claims into your product or implementing alternative mechanisms that might accomplish the same function but in a different way. If you can do that, then you avoid patent infringement by designing around the patent claims.