Legal opinions related to patent infringement

people-219985_1280Patent rights are sometimes infringed. Patenthuis provides customers with legal advice concerning what do in such cases, which usually follow one of two scenarios.

Infringement of your patent or patent application

Somebody is using your protected technology. Now what?

Patenthuis analyses the situation thoroughly and provides a legal opinion regarding the scope of the infringement, if it exists.

In case there is infringement, there are several next steps that can be taken.

  • Patenthuis can ask for clarification from the infringer.
  • We can hold license negotiations with you or for you.
  • We can ask for compensation of damages.
  • Finally, we can also counsel you in court proceedings to stop the infringer.

Infringement of somebody else’s patent

It happens to many companies: Suddenly, a letter from a lawyer arrives alleging a patent infringement and demanding a halt to the infringing activities and damages that ensue.

Don’t panic. Patenthuis can analyse the situation for you and give advice about your options in each case.

It may well be that there is no infringement. In that case, we can, in consultation with the client, draft a suitable reply.

It may well be that there is indeed infringement. We will inform the client honestly if this is the case.

Additionally, in such cases, there are potential solutions. It may well be that the patent doesn’t satisfy the applicable legal requirements, and is thus in principle void. It may also be that mistakes were made during the granting procedure, that can lead to invalidity of the patent.

Freedom to operate – FTO

Obviously, most people don’t want to infringe somebody else’s patent.

When in doubt whether this might be the case, Patenthuis can investigate. This is called a Freedom-to-operate (FTO) study.

In such a study, Patenthuis will provide legal opinion on whether there could be infringement. In many large companies, this is done early in the development stage to avoid learning later that a finished product or process may not be used commercially.

An FTO study can reveal that there is no problem, or that you are running a significant risk of infringement. In the latter case, Patenthuis will provide advice on next steps, such as technical adaptations, obtaining a license agreement, or nullification of the patent.

The amount of work involved in an FTO study can quickly add up. Obviously, the expenses of an FTO study should be reasonable in comparison to the projected revenue of the product or process concerned.

For this reason, an FTO study is always done on a limited number of patents—e.g., only a few that are of particular concern, or only the patents of one or more competitors, or perhaps limited to the results of a patent search. A geographical limitation is often used, as well.

A certain residual risk always remains present in that there could be infringement of patents that were not studied.

Patenthuis may perform an FTO study based on patent searches performed by others, but can also perform a preparatory patent search. See the page on searches for more information.

Performing such a patent search, especially evaluating the results for relevance, cannot be separated from the analysis of the FTO study, itself. For that reason, a patent search and an FTO analysis are usually included in the overall budget. Obviously, the bigger the budget, the wider and more thorough a patent search can be performed, and the lower the risk of an incorrect analysis of Freedom to Operate.