This post is part of a series of posts entitled A Guide To Intellectual Property Protection. For a comprehensive list of articles contained in this series, click here.
The financial cost of enforcing a patent against a potential infringer is highly dependent upon the complexity of the case, but legal expenses alone can easily reach hundreds of thousands of dollars. If a case makes it all the way to trail without first settling (the vast majority of patent disputes settle before making it to trial), the expenses can run into the millions of dollars. Very few attorneys are willing to litigate such cases for a fee contingent upon winning the case. It is of course possible to recoup part or all of the legal costs should the patentee win, but this prospect is never certain in advance of the court action.
It is possible to avoid the costs associated with litigation by arbitrating an infringement dispute, but arbitration requires both parties (i.e., the patentee and the potential infringer) to agree to arbitrate. Generally speaking, the chance of getting such an agreement is poor.
Patent protection offered by a valid United States patent extends only to the making, using and selling of the patented invention in the United States. A third party may make, use or sell the patented invention in any other country without infringing the U.S. patent. To obtain patent protection in foreign countries it is necessary to file a patent application in each of the countries where protection is desired. Each of these countries has its own set of rules and regulations which must be followed. Should the inventor contemplate obtaining foreign protection he or she should seek help from a patent attorney before disclosing, selling or attempting to sell the invention anywhere, including the United States.
A patent, as previously indicated, gives one the exclusive right to prevent others from making, using or selling the patented invention. In essence, it is a government created monopoly that allows only the patent owner to make, use or sell the patented invention, subject to any other existing patents. The life of a granted U.S. utility patent filed on or after June 8, 1995 is 20 years from the date of filing. In other words, third parties would not be able to begin making, using or selling the patented invention until after the 20 year period expired. Thus, the patent owner would have a number of years to establish a market share as the sole supplier of the patented invention.