What Does a Patent Actually do?

Learning about a Patent

One of the most common questions we get is, “What does a patent actually do?”

To understand what a patent does, it helps to first understand what a patent doesn’t do.  A patent doesn’t give a patent owner the right to make, use or practice their invention.  A patent give the owner the right to exclude others from making, using, selling or importing a device which is covered by a patent.  However, the patent never gives the patent owner (the patentee) the right to make the invention themselves.  This is one of the most common, and potentially most expensive lessons a business can learn.  Even if you own a patent, you can be liable for infringing the patent of another.

When you think about it this makes sense.  Unlike a trademark, a patent is not based on use.   As a patent owner, you shouldn’t have an obligation to make anything.  However, if you are going to make something, then you should be responsible for making something which is covered by someone’s patent. So the next question is how do you find out if making something will infringe someone’s patent?

Patent Searches Can Help

Typical business life cycles include the startup, growth, maturity and decline stages.  Various business are at different life cycle stages at different times.   A patent search can be helpful at each stage.  While there are different reasons for conducting a patent search, different types of searches can be helpful at different stages in a business life cycle.  Before you start a business, it may be helpful to understand what technological product/service is important to the business and learn if you can obtain a patent.  If your business is going to sell a new product or provide a new service, most patent attorneys recommend that you consider obtaining a patent.  If you are going to sell your business, you may want to determine the value of the patents you own.

If you decide to get a patent, it is usually recommended that you obtain a patent search.  This type of search is called a patentabilty search.  As part of the search, a patent attorney can also conduct a search to determine if the business is likely to be sued for infringement.  This type of search is sometimes called a freedom-to-operate search or non-infringement search.  While the freedom-to-operate search is more expensive than a patentability search, it can provide additional information for a business to help avoid claims of infringement.  With the results of the freedom-to-operate search you can chose from a variety of options including you may want to consider make changes to your products/services or you may decide to obtain a license or purchase the patent.  Depending on the negotiations, this can be significantly less expensive than defending against a claim of patent infringement.

If you have a new product or service you should consider contacting a patent attorney and discuss what patent search strategies would be beneficial to your business.  By systematically integrating patent searches, including patentability, freedom-to-operate and non-infringement searches into your business you may be able to avoid costly mistakes before they become expensive litigation matters.