Well then, you have a U.S. patent on your nifty new product and you have found out that a competitor is making this product without paying you. You are angry and call your lawyer who, after a quick golf game, promptly files a lawsuit against the company. It is obvious that the claims of your patent cover the competitor’s product and they were not making it before you filed your patent. So, the lawsuit should be easy, right? Those back and future royalties will be nice. Not so fast there legal eagle.
Your competitor is likely going to try and invalidate your patent. In other words, they are going to try and find prior art that the patent office missed when examining your patent application. If they show that the invention was around before you filed your patent, then your patent will be invalidated.
The competitor or their lawyer will hire a research company or consultant to try and dig up prior art that was overlooked during the examination of your patent. This can be a single item or a combination of items that eliminates the novelty of your invention or makes it look obvious to anyone familiar with those type products. The infringing side (your competitor) would, ideally, like to find an expired patent or non-patent document that covers your invention. This way they don’t have to worry about being bothered by the other patent owner wanting their royalties too.
This legal battle is expensive for both sides. Often, if it is an individual patent owner versus a big company, the individual can’t afford to fight the battle. The patent is worthless if you can’t afford to enforce it. Unfortunately, companies know this and exploit it.
The moral of the story is that you want to get a thorough prior art search completed before getting your patent. Some inventors don’t want to know about pertinent prior art that is out there. If the patent office misses it, they think it is their good fortune. This attitude may get you a patent but the patent may be worthless if you ever have to try and enforce it in court. If there is prior art out there that can invalidate your patent, it will likely be found when there is a lot of money on the line.
This article is not meant to be legal advice.