One of the most important roles of a patent is to help protect against potential infringement by competitors. When you have a patent for a product and another party attempts to produce, sell, or otherwise profit on the same product without your permission, federal law allows you to pursue an infringement lawsuit to 1.) get that party to stop and 2.) collect any monetary damages you may be owed.
There are three elements needed to prove infringement, so it is critical that your patent contains claims which will demonstrate obvious infringement.
One of the most common defenses to patent infringement is for the infringing party to show that there was prior art before the patent was even issued. Prior art means that there is a product or service that already exists that is like the product or service you have the patent on.
Prior art is actually one of the main reasons why patents are denied, to begin with. This is why it is important to conduct a thorough prior art search before submitting your application. It is highly recommended that this search be conducted by a qualified patent attorney given how complex and detailed these searches can be. Having a professional intellectual attorney conduct the search not only avoids denial of your patent application, but it will also avoid the issue as a defense for any entity accused on patent infringement of your product in the future.
If a patent attorney does find prior art in the search, this can be disclosed to the patent office in the application so that they can evaluate whether or not it is too similar. When the prior art is submitted with the application and the patent is still approved, it makes it much more difficult for a future infringing party to use that prior art to invalidate the patent in order to defend against an infringement lawsuit.
It is also important to have well-constructed claims in your patent which concisely describes what the patent covers. A seasoned patent attorney can assist you in making sure your patent is written in a way that fully protects you. Your attorney will make sure your claim contains broad independent claims and more specific dependent claims. The broad claims will protect you against the threat of competitors who try to infringe on your product. The narrow claims will help protect you from the risk that prior art will affect any of your patent claims.
In order to pursue an infringement claim, you need to know that it is happening. The way most patent holders discover infringement is because the infringing party does something that is in the public arena.
When drafting the infringement lawsuit, the claims in your patent will play a significant role in whether or not you are successful in proving your case. This is why it was so important to have a patent lawyer draft your original patent application. There is no way to anticipate what type of claims will work in proving infringement, but a high-quality written patent should have a variety of both independent and dependent claims to help protect against whatever an infringer tries to use as a defense.