Many inventors, businesses, and entrepreneurs file for patents. Once awarded, they then find out they cannot make, sell, or do anything with their design. If they do, they can infringe on another's patent. So what's happening here? How can two different groups have two different patents if one patent infringes on the other?
From Idea to Patent
There's no big mystery, it's all about patentability. Just because something is patentable, doesn't mean that it doesn't infringe. To understand this, you must first understand what makes something patentable to begin with. The five elements of patentability are:
- Patentable subject matter
You can satisfy all of these elements, and even make it through the entire patent process from application to award. But you're not done just yet.
From Patent to Infringement
Even with a patent, you cannot start manufacturing, selling, and earning a fortune just yet. Does your newly patented thing rely on another patented thing? If so, you will need to take a few more steps before you can do anything with your project.
Here's an example. You receive a patent for a novel device that can make a properly fitted chair lean back, forward, or side-to-side. This doesn't mean that you can suddenly start manufacturing chairs that are fitted with your device. That's because
- Someone already owns a patent on chair backs
- Somebody else owns a patent on chairs
- Someone else owns a patent on the chair casters you require
The second you produce that swiveling chair, you infringe on these other legitimate patents. Even if you didn't know that you needed permission for these other aspects that constitute a chair, you will still open yourself to litigation.
Understanding Your Options
This isn't something new or unheard of. It's the reason many larger corporations often negotiate with others on a lot of their products. For example, there are likely several companies who pay several other companies just so you can have all the technology and features in your smartphone. Of course, that process doesn't always go so well.
Although, that process does illustrate what your options are. You will have to choose one of the following:
- License the use of these other patents from the patent owners
- Come up with a completely different way of using your patented device
- Buy the patents if you have the funds and the owner(s) is willing to sell
If you cannot do any of those things, then you can try the opposite approach and put your own patent up for sell. It's possible that some chair conglomerate would be more than happy to take it off your hands. Or, you can sell manufacturers on the idea of licensing your device to use in their products.
In every one of the mentioned possibilities, you should consult an intellectual property lawyer about your next step. Navigating patent law without a patent lawyer is a mistake that can cost you a lot in the end. A little advice and legal aid can help you do a lot more with your patent than you can do on your own.