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What do you do if your R&D patent application faces conflicts that need resolution?

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If you work in research and development (R&D), you know how important patents are for protecting your innovations and creating value for your organization. But what happens when your patent application faces conflicts that need resolution? Conflicts can arise from various sources, such as prior art, novelty, obviousness, or infringement claims. In this article, we will explore some strategies to deal with common patent conflicts and how to avoid them in the first place.

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1 Prior art search

One of the most common sources of patent conflict is prior art, which refers to any existing knowledge or invention that is relevant to your patent claim. Prior art can invalidate your patent or limit its scope, so it is crucial to conduct a thorough and accurate prior art search before filing your application. You can use online databases, such as Google Patents, Espacenet, or USPTO, to search for patents, publications, or products that are similar to your invention. You can also hire a professional patent searcher or attorney to help you with this task. By doing a prior art search, you can identify potential conflicts and adjust your patent claim accordingly.

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Shannon McCue

Providing business strategy through the lens of intellectual property. Over 25 years of experience protecting, negotiating, enforcing and defending valuable intellectual property rights.
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Honestly, if you have filed an application, you should have already performed a prior art search. We’ll assume that the conflict arises from undiscovered prior art. I would not recommend further searching unless the conflict raises the question of whether we need to invalidate the prior art to clear a path for a particular use case.

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Dennis Dannemiller

NASA Glenn Research Center, Alcyon Technical Services (ATS) JV, LLC
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Thanks for sharing and educating others in this highly specialized field of intellectual property. Very few have this knowledge, but many pretend to.

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Attila Balogh, EMBA

Executive I PhD student | University Assistant Lecturer | URI MBA ‘22 I MIT MMx ‘23 I University Global Ambassador I MMI mentor
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Prior art search is so important that it has already grown into a separated industry. Having investing into this activity would help you even when you are within your R&D activity as a small, but significant difference what you can build into your product or services would help you later on to be able the do the necessary differentiation when writing and submitting your patent claim. The more valuable you think your possible patent is, the more money would worth to invest into a professional services regarding prior art search.

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2 Novelty and obviousness

Another source of patent conflict is novelty and obviousness, which are two criteria that your invention must meet to be patentable. Novelty means that your invention is new and not disclosed by prior art. Obviousness means that your invention is not an obvious improvement or combination of existing knowledge or inventions. If your patent examiner or a third party challenges the novelty or obviousness of your invention, you will need to provide evidence and arguments to support your claim. You can use technical details, drawings, experiments, or expert opinions to show how your invention differs from prior art and why it is not obvious to a person skilled in the art.

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Attila Balogh, EMBA

Executive I PhD student | University Assistant Lecturer | URI MBA ‘22 I MIT MMx ‘23 I University Global Ambassador I MMI mentor
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In our exponentially growing field of development and innovation, it is very hard to keep up with the pace and be able to clearly define what is new and how you created some working invention which has not existed before. I would suggest to seek for assistance, talk and meet with people who has already done it, hire a professional who could help you to navigate through the theory and advice how to implement it into practical approach, meaning that your application has to be clear and well-defined in terms of novelty and obviousness as well.

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3 Infringement claims

A third source of patent conflict is infringement claims, which occur when someone accuses you of violating their patent rights by making, using, selling, or importing your invention. Infringement claims can be costly and time-consuming to resolve, so it is advisable to avoid them as much as possible. You can do this by conducting a freedom-to-operate (FTO) analysis, which is a process of identifying and evaluating the patents that cover your invention or its market. You can use online databases, such as Google Patents, Espacenet, or USPTO, to search for relevant patents and their legal status. You can also hire a professional patent analyst or attorney to help you with this task. By doing a FTO analysis, you can identify potential infringement risks and take appropriate actions, such as licensing, designing around, or invalidating the patents.

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Shannon McCue

Providing business strategy through the lens of intellectual property. Over 25 years of experience protecting, negotiating, enforcing and defending valuable intellectual property rights.
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If you are accused of infringement, you should get legal advice. In the US, once you are on notice, the damages for infringement accrue and continuing to infringe can expose you to greater liability. Beyond the recommendations in the article, there may be other solutions such as acquiring the patent/technology or joining a collective rights organization that already has a license, and whether there is insurance coverage or contractual indemnity that apply.

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4 Conflict resolution

If you encounter a patent conflict that cannot be avoided or resolved by yourself, you may need to seek external help or legal action. There are several options for patent conflict resolution, such as negotiation, mediation, arbitration, or litigation. Negotiation is a process of reaching a mutual agreement between the parties involved in the conflict. Mediation is a process of involving a neutral third party who helps the parties find a solution. Arbitration is a process of submitting the dispute to an arbitrator who makes a binding decision. Litigation is a process of taking the dispute to court and having a judge or jury decide the outcome. Each option has its advantages and disadvantages, depending on the nature, complexity, and severity of the conflict. You should consult a patent attorney or expert to help you choose the best option for your situation.

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5 Here’s what else to consider

This is a space to share examples, stories, or insights that don’t fit into any of the previous sections. What else would you like to add?

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What do you do if your R&D patent application faces conflicts that need resolution?

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1 Prior art search

2 Novelty and obviousness

3 Infringement claims

4 Conflict resolution

5 Here’s what else to consider

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