Patent infringement litigation is expensive. It is typical to see legal fees in the seven-figure range to defend a patent litigation all the way to a jury trial. Facing the prospect of an injunction and damages can cripple a company’s cash flow or market power. It also can take you away from focusing on running your business resulting in collateral damage to your business.
The best and most inexpensive way to defend against a complaint for patent infringement is to not get sued at all. One can avoid being sued for patent infringement by conducting an infringement clearance search, also called a freedom to operate search, during the design phase of a product. Such a search is usually conducted when you are confident the design is ready for commercialization but prior to investing capitol needed to mass produce the product.
For a mechanical device, the search is usually conducted before money is invested in tooling to build the product. At this stage, if a design around is needed it can be accomplished with minimal effort and not a significant setback in the development process.
When considering timing of such a search, you should budget 4-6 weeks to complete the search. While an infringement clearance search is not a guarantee of avoiding a patent lawsuit, it significantly reduces that risk. One should also consider an infringement clearance search if you are acquiring a company that has had a product on the market for six years or less and no such search was previously conducted. Conducting a freedom to operate search is akin to an ounce of prevention being worth a pound of cure.
To learn more about how Panitch Schwarze Belisario & Nadel, LLP intellectual property lawyers can help you, contact us.