How to Deal with Design Patent Infringement

In order to remain competitive, you need to find a new angle that will give something new or unique to your audience. The problem with this simple idea, however, lies in the fact that if this is truly something unique and revolutionary, it won’t be long until your competitors start copying it. This would mean that someone else gets to benefit from your great ideas and your own hard work.

Not only that but by doing so they’ll be actively diminishing your competitiveness, thus directly hurting your profit. In order to prevent this from happening you need to patent your invention. However, what happens when someone knowingly or unknowingly infringes on your intellectual property? Here’s what you need to know in order to act.

1.      What is a patentable subject matter?

The first thing you need to know, even before you apply for the patent is what counts as patentable subject matter. Generally speaking, there are several categories that come into consideration. For instance, it could be a new process method or a new composition that gives you an edge when compared to your competitors. It could also be a manufactured item or a machine.

Overall, there are four criterions that a subject matter needs to pass in order to qualify. It needs to be 1) patentable, 2) novel, 3) useful and 4) it must not be obvious. The problem lies in the fact that all four of these may be quite abstract and prone to interpretation. Needless to say, this could end up being a problem later during the process of protecting your patent in court, not just during the application process.

2.      A patent is not always a good idea

The next thing you need to understand is the fact that patenting your product, business model or method is not always a good idea. Why? Well, first of all, it’s because in order to patent it, you need to submit everything to the last detail to the patent commission. What this means is that you’re openly and willingly telling your trade secret to an outside entity. Later on, a competitor may come by this information and use it in order to make a profit. Of course, they’ll change it a bit so that you don’t get the right to sue them.

Therefore, before applying for a patent, ask yourself if this is really what you want. Also, keep in mind that as you invest in visibility and your brand starts growing, you too will grow as a target. It’s much better to think about this in time than to regret it later on.

3.      Why is this so important

Any legal process requires a great deal of mental endurance and stamina, mostly due to the fact that it’s a lengthy and stressful process. Therefore, you need to be properly motivated and for this to work, you need to know exactly why you’re doing this. Now, in the introduction, we’ve briefly hinted on the fact that a patent infringement hurts your profits, however, you might need to understand this a bit better. Having a patent protects your market share, as well as your resulting revenue.

Other than this, having a strong patent may also protect your reputation on the market, a reputation that could be tarnished by inferior products that are seemingly similar to yours. Finally, having a patent and fighting actively to protect it can increase the commercial value not just of the patented subject but of your business as a whole. As you can see, it’s vital that you actively do all that’s in your power to make a stride in this field.

4.      Consult a specialist

Once you know or suspect that someone has infringed on your patent, what you need is to set off a legal mechanism that will defend your rights as a patent owner. More often than not, you’ll need some help in this area, which is why you should look for patent infringement specialists to help you out. Just by scheduling a consultation and inquiring about your options you’ll already make a move in the right direction. Later on, regardless if you opt for patent dispute resolution or patent litigation (your best two options in resolving this patent infringement dispute), you’ll stand a much better shot at making it.

5.      Dispute resolution or litigation

Outright forcing people to relinquish their patent infringement practices is not your only choice and it’s definitely not the best one in every given situation. Sometimes, you would do best to go with professional mediation or just negotiate with the second party. Before you proceed with the litigation, you need to take into consideration the fact that the patent infringement in question might not have been deliberate. Therefore, if you just give notice to the party that’s infringing on your patent, you can avoid necessary litigation. Still, if it comes to that, you shouldn’t shy from the necessary litigation either.

6.      The ordinary observer test

The last thing you need to keep in mind is the fact that in order to set all of the above-mentioned in motion, you must first be able to tell that your patent is being infringed upon. In order to do this, you need to check if the subject in question is substantially the same to what you have in offer. Keep in mind that this is all concerned with how these products behave on the market, which is why you’re less concerned with an in-depth analysis and more with how it’s seen by an average buyer. The so-called ordinary observer test is one of the most commonly used patent infringement tests, even though it’s most commonly used when it comes to the patent design.

In conclusion

As you can see, the issue is not as simple as possible. First of all, patenting is not always the best course of action. Second, determining whether something is really a patent infringement can be tricky at times. Third, even if your patent has been infringed upon, outright suing the other party might not be the best course of action. With all of these factors adding to the overall confusion, finding some professional guidance as soon as possible might definitely be the best course of action.


Guest post courtesy of Nick Brown

Mercy - CBNation

This is a post from a CBNation writer. CBNation is a Business to Business (B2B) Brand focusing on increasing the visibility of and providing resources for CEOs, entrepreneurs and business owners. CBNation consists of blogs(, podcasts ( and videos ( CBNation is proudly powered by Blue 16 Media.

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