The Truth About Patent Infringement

The “big guys will bury me, so why get the patent?” question is one that patent attorneys hear often. However, there are mitigating factors involved that make the obtaining of the patent far more favorable than any concerns of future litigation.

Who would you rather be? Would you rather be the person with or without the patent? This is an important realization – when you are in negotiations with a competitor who has stolen your invention, you should be the one with the patent.

When it comes to someone infringing your invention, the bigger the player, the better the chance that they will deal with you – if you are reasonable – than go through the headache of a lawsuit. Large companies would rather buy your invention or license it, as opposed to finding themselves in a suit where the attorney, seeing big dollar signs, takes the case on a contingency basis allowing the patent holder to sue essentially for free.

Hit them where it counts WITHOUT a lawsuit!

If someone sells an infringing product to or through large retailers such as Amazon, Wal-Mart, Target, etc., you can send letters to these companies, and they will pull the product as they do not want to be sued for infringement. Remember that one of your rights is the right to sell the patented product. Instead of getting into a dispute between two parties, these companies simply remove the product giving you a large amount of leverage over the accused infringer.

When it comes to small operators, more often than not, a simple letter stating you find infringement and will take action to protect your intellectual property is all that is needed. They may not realize they are infringing the invention and in any event, often would not have the ability to defend against even the very beginning steps of a lawsuit.

What are the odds of a patent infringement lawsuit?

What are the odds? Generally, the odds are very low that you will ever find yourself in the beginnings of a patent infringement case, let alone the case not be resolved before going to an actual trial. There are approximately 4,000 to 5,000 patent infringement cases filed each year (most of which do not go to trial), while there are, at any given time, more than 2,500,000 valid US patents in circulation. Simple math tells us that the risk of finding yourself in such a suit is minimal and will only happen if there is enough money on the line to make it worth it for both parties.

In my 20+ years of being an attorney, I can tell you that from the smallest inventor to large corporations, you are in a better position if you are the one with the patent. The odds of getting caught in a lawsuit are extremely low – I have only had one – as nearly all patent infringement cases are settled long before a lawsuit is contemplated. And having been in-house counsel at a large corporation, having patents gives you something to play with in negotiations with your competitors.