Founding Partner
When clients come to Gearhart Law, we first take a look at their project to see if we think it’s patentable, as there are many rules around patentability. If it is believed to be patentable, we always recommend a patent search first so they don’t waste money on something they can’t get a patent for if the search comes back unfavorable.
What if the search does come back unfavorably? Do you have to abandon your project completely? Not necessarily. If you still want to proceed, there are a number of options available to you:
Freedom to Operate Opinion – a previously issued patent may be blocking you from getting your own patent, but if it’s expired (20 years from the filing date) or lapsed (the maintenance fees weren’t paid) and there’s nothing else blocking you, then you’re free to pursue your project, albeit without utility patent protection. In that case, you’ll have to depend on your brand to differentiate your business and on your trademark to protect your intellectual property.
If you can’t get a utility patent but your product has distinguishing visual features, you may be able to get a design patent. A design patent protects the ornamental features of a product and is used by many businesses, either by itself or in conjunction with other intellectual property protections.
You may be able to reengineer your invention to design around existing patents, but thiscan be tricky.
If there’s no patent blocking you may choose to use trade secret protection. There are rules for this and it is possible to keep others from stealing your idea if you can prove they had access to it through you.
If you want help deciding the best way protect your valuable intellectual property or have other IP questions, call us at 908-273-0700 for a free consultation. We’d be happy to help you!