Most of the startup companies have to really work hard to establish their business set up. After that perhaps they file the patent and start manufacturing the product and release samples into the market, when they suddenly receive a notice that they are sued for patent infringement.
What should you do in such circumstances? According to famous legal expert Aaron Minc majority of these cases do not proceed further. The number of cases has started increasing at such an alarming rate that most of the lawyers have started ignoring them. However, as a responsible businessman you must try to take following steps to defend you.
Find out why you are targeted
Usually there could be two main reasons that may have prompted the patentee to serve you a notice. Most likely is that his business product could be very similar in nature. In fact, the number of patent application of the same type of product is increasing so much that there is a distinct possibility that despite your honesty and diligence your product must be infringing with some other similar product.
The other possibility is that someone has taken patent for broad range of products and one among them must be your product. There is a possibility that he is presently not taking up that product and hence he wants to prevent others from entering in the future market. Therefore, he wants to force you to make some licensing deal and demand some money or go for litigation.
You need to prove your innocence
Whenever you get any legal notice for patent infringement it is essential that you need to take certain action to prove your innocence. You can do that in following two ways.
- You must challenge the other patentee by telling him the scope of the patent.
- You can also challenge the validity of the patent of the accuser and prove that it was totally invalid right from the start.
Arrange for licensing deal
If you cannot save yourself by taking the above steps then the next best option is to arrange for licensing deal. By making deal with the patentee you can use the patented technology to produce and sell your product in the market. Licenses are of two kinds, one is known as exclusive license and the other is non-exclusive license. Under exclusive license the patent owner will not use it for his product. You will be then the owner of this patent and use it exclusively and even can sue if anyone else uses this patent. Under non-exclusive license you are free to produce and market your product and the patentee can provide this license to any other party too.
Go for trial
If none of the above works then you have to go for trial. However, if you lose the case then you can no longer sell your product and also you may have to pay damages to the original patentee for his loss of profit and his legal fee. Even if you win the case, it is quite expensive and hence considered as a last resort.
