There are two major patent law issues when bringing a new product to market: (1) make sure your product doesn't infringe any existing patents; and (2) secure your competitive advantage in the marketplace by patenting your invention.
1
Contact a Patent Lawyer
Intellectual property matters, particularly patent related matters, are often exceptionally technical and complex. Anytime your business encounters intellectual property issues you should consult with a qualified attorney. This guide is intended to help you understand the issues at play and the steps that will be taken, but this guide is no substitute for qualified counsel.
2
Provide Your Lawyer with a Complete Description of the Product
The following steps each depend on the quality of the information you provide to your lawyer regarding your product. Given a clear and complete description of your product, focusing particularly on (1) the differences between your product and what exists in the market and (2) the competitive advantage you'll gain with your new product, your attorney will be able to accurately assess the degree of risk of infringing existing patents and identify your patentable subject matter. Your attorney may have a specific invention disclosure form you can use to collect your information. Regardless of how the information is collected and organized, the best disclosures include a combination of written description and drawings. While it is hard to provide too much useful information, as the client you should never feel overwhelmed or have to create information that doesn't already exist in some form. Just get what you have to your attorney and together you can build from there.
3
Request a Patent Clearance Search
Once you have communicated a clear description of your product, your attorney may conduct a clearance search. Your attorney may rely on a third party that specializes in patent searching for the search. The purpose of the clearance search is to find any existing patents that may impact your ability to bring your product to market. Depending on how crowded your area of technology is, the search results may include a considerable number of patents for review.
4
Receive a Freedom to Practice Opinion
After you receive the clearance search results, your attorney may provide you with a freedom to practice opinion. The freedom to practice opinion will assess the level of business risk involved in bringing your product to market by comparing the identified patents to your product. The opinion may provide you with a brief description of how your product avoids infringing each of the identified patents. Assuming the search results do not include any patents that will block your product from the market, it is time to assess the patentability of your invention.
5
Assess the Patentability of the Inventive Aspects of the Product
Having reviewed your product description and the identified patents, your attorney will assess the patentability of your invention, either in part or as a whole. Any inventive aspects of your product that are new (novel) and not obvious may be protectable. You don't need a patent to bring your product to market, but an effective patent can help you secure your market share and keep your competitors from being able to ride on your coat tails.
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