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Should I do a Non-Infringement Search for My Patent?


Should I do a Non-Infringement Search for My Patent?

To successfully complete the patent application process, many inventors work with intellectual property attorneys in order to perform searches for existing, relevant patents. This allows inventors to safely research and develop specific products and services without possibly creating something that already has been patented previously. 


Though patent searches are a critical step that inventors must take before completing the patent filing process, it is also crucial that they conduct a non-infringement search as well. While patent searches determine whether a patent can be filed, non-infringement searches determine if the new product or service may infringe on the intellectual property rights of previous creations.  


What is a Non-Infringement Search?

A non-infringement search, or a freedom to operate search, is an assessment of the commercialization of a product or service to determine if it can safely be released without risk of infringement lawsuits. The search entails checking whether the product or service being launched goes against a third party’s intellectual property rights. A non-infringement search can be performed at any point during the product or service’s development life cycle as a way of determining the flow of its creation. However, the main purpose of a non-infringement is to ascertain if a new product or service is worth obtaining a patent for or not. 


The Non-Infringement Search Process

A non-infringement search starts by addressing what jurisdiction the developing product or service will be sold in. This is due to different jurisdictions requiring different precautions. For example, if you plan on selling a product or service in Europe, you are more than likely going to need some assistance from a foreign attorney to successfully navigate a foreign patent landscape.  

After you have determined which jurisdiction you plan on selling your product or service in and in turn, what precautions will be necessary, you will then focus on the features of the product or service being patented. From there a patent search is performed on the developing product or service with any relevant patents found being flagged for future analysis. The similar patents that have been flagged are then checked to see if they are active, or expired due to the owner failing to pay maintenance fees.


Expired Patents – Patents that are expired cannot be infringed unless the owner petitions the revival of the patent. If the patent is revived, the party that was preparing to file the then infringing patent is given a 6-month grace period called intervening rights to protect them from any infringement lawsuits.


Active Patents – The patents that were tagged and not expired are then thoroughly analyzed to determine if those patents pose an infringement risk to the product or service being patented. The analysis interprets the meaning of the claims and terms of the patent by going over every small detail and the attached drawings. The analysis can also include looking over the history of relevant patent applications to reveal the meaning of the terms in the claims. This can also include reviewing any prior art cited in the patent.

With non-infringement searches, patent claims that are closer to the product and service being filed or ambiguous claim terms often lead to a longer period of time needed to determine if the patent claims present an infringement risk.


Why Perform a Non-Infringement Search?non-infringement-searches

Similar to a patent search, non-infringement searches are used as a way to identify patents similar in nature to the product or service that is attempting to be patented. As mentioned earlier, non-infringement searches are also used to determine whether a new product or service is worth obtaining a patent for or not. This is a way for inventors to continue researching and developing an invention without the fear of wasting time and resources on an invention that could possibly infringe on the intellectual property rights of a third party.


What Levin Consulting Group Can Do

If you’re looking to conduct a non-infringement search or are looking to file a medical device patent, standard patent, or any other form of patent, we are the experts to get in touch. We understand your business context and offer patent services that are suitable for your needs. Our team works to take the stress out of applying for a patent.


Book an appointment with us today.