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IP Intelligence

How to Avoid Patent Infringement Before It Happens

It may not be possible to completely eliminate the risk of an infringement claim against your invention. However, with thorough research and informed design, you can minimize the likelihood that your patent infringes on an existing claim. To avoid patent infringement, ensure your innovation will later pass the test for literal infringement and the doctrine of equivalents (DOE) requirements.

Avoid Literal Infringement

Literal infringement is often obvious; the technology in question is a close, if not identical, copy of an existing patent. How do you know if your product or process infringes on a patent? This requires reviewing all relevant patents (and applications) with a freedom to operate (FTO) search, also known as a patent infringement search.

Patent infringement searches unearth specific patent claims that your proposed innovation may infringe upon. The result of this type of research is an assessment of the risk of infringing on an existing patent with your new technology. To avoid patent infringement, it is best to complete a patent infringement search early in the innovation cycle, so that your product can be designed around existing claims. It can also be beneficial to review the results of your Technology Vitality Report (TVR), which assesses the novelty of your idea, and similar prior art discovered via InnovationQ Plus® with infringement in mind. Investing in this type of research shows due diligence in future infringement cases.

While this process sounds similar to a patentability search, the two are different because they serve different purposes. An FTO search aims to assess the likelihood of infringement; a patentability search focuses on proving novelty. 

Avoiding literal infringement also includes writing around existing claims. The language of your patent claim has the power to narrow the scope of your application and the resulting patent, which can lower the risk of infringement claims later on. 

Pass the Doctrine of Equivalents Test

It is not enough to avoid literal infringement. The DOE compares a product or process to a patented technology in three ways: function, way, and result. This is known as the “triple identity” test. Even if your product looks different, it can still be guilty of infringement “if it performs substantially the same function in substantially the same way to obtain the same result” as the patent describes. 

It is important to consider the overall function and outcomes of your invention, as compared to those documented in existing patents, to avoid patent infringement claims on the basis of the DOE.