Competitive Patent Analysis: Infringement and Validity

Whether you are faced with an allegation of infringement, or are trying to avoid patent troubles before launching a new product, the attorneys of Tysver Beck Evans can help. We are experienced in analyzing patents owned by third parties and guiding our clients successfully through these situations.

When a client becomes aware of a competitor’s patent, our first step is to develop a good understanding of the scope of this patent. Very often this understanding leads to a conclusion that our client does not actually produce a product or perform a service that infringes on the patent (there is a more detailed discussion on patent infringement on the BitLaw website). In these cases, we can develop a written non-infringement opinion that explains why the patent does not cover our client’s activities.

In other cases, our investigation leads us to conclude that the competitor’s patent should never have issued. Even the patent office makes mistakes, and when they do they issue a patent for an invention that does not meet all the requirements for patentability (see the patent requirements discussion in BitLaw for more information). Typically this happens when the patent office was not fully aware of what others had already accomplished relating to the invention before they issued the patent. When we identify this type of mistake, we can generate an invalidity opinion that explains why the patent is invalid.

If it is not possible to develop a non-infringement or invalidity argument, we can still help our clients avoid a competitor’s patent by designing around the patent. This process requires that the client’s product be updated in a way that avoids infringement of the patent. Sophisticated clients frequently request that we help them design around known patents so that patent complications can be avoided.

In those circumstances where our analysis is not enough to avoid legal action from an aggressive competitor, we are able to assist in legal actions to prove non-infringement or invalidity. We have worked closely with litigation counsel during patent infringement lawsuits, and are frequently asked by clients to recommend the right litigation attorneys for their disputes.