My competitors are taking my written product data and providing it to their customers. What can I do to stop them?
It depends. If your data is publicly available, e.g., provided with your product or on a website, probably nothing. Except in extremely limited circumstances, the law does not protect publicly available “data” or “facts,” such as scientific test data, regardless of whether you or your company spent time and money preparing it. Copyright, on the other hand, may protect the particular expression of your data. If your competitors are copying your data exactly, including its format, you may have a viable copyright claim. This, however, will require a valid copyright registration and virtually identical copying.
Any non-public information, which provides a competitive advantage, and which you have made reasonable efforts to keep secret, is a trade secret. If your data is not publicly available, and you believe it is being wrongly appropriated, you may have a claim for misappropriation of trade secret.
How can my business prevent its product designs from being copied?
Product designs can be protected under the patent, trademark, and copyright laws. Each form of protection has its advantages, and one or more of them may be appropriate for your business. All statutory schemes generally cover the product’s overall appearance, and are available only to the extent that the design features are ornamental and not dictated by the functional aspects of the product. Design patents provide strong coverage for 14 years, but the design must be different from all prior publicly known or disclosed designs. Trademark protection can last indefinitely, but is only available if and when the design signals the brand of the product such that consumers associate the design with your business. Copyright protection lasts over 75 years and is available for any original design, but will only protect against actual copying, not coincidental similarity. If you have a design you wish to protect, you should consult an intellectual property attorney to determine the best course of action for your business.
I recently discovered a competitor’s patent that covers my product. I do not think the competitor knows about my product, so can I just ignore the patent?
Once you become aware of a patent covering your product, you have a duty of care to avoid infringement. There is no affirmative duty to search for patents before selling a product. However, if a patent is discovered and ignored and a court later finds the patent to be infringed, the infringement can be considered willful, and increased damages up to three times the amount of actual damages as well as attorney fees may be awarded. To fulfill the duty of care and avoid willful infringement, a patent attorney should be consulted to evaluate the scope of any known patent. A legal opinion of non-infringement can protect you from damages for willful infringement. However, if the product infringes the patent, you could consider licensing the patent or re-designing the product.
Our company obtained a patent on our new product that’s selling like hotcakes, but our competitor accuses us of patent infringement. How can that be?
Owning a patent does not automatically allow you to sell your patented product. Instead, it gives you the right to prevent others from making, using or selling it. Your product may be patentable, but your competitor may own a different, broader patent that covers your product. Example: Eraser Company may patent a pencil with a unique rubber tip. Pencil Company, however, may already have a broader patent claiming a lead-based writing instrument, which encompasses any type of pencil. In one solution, cross-licensing may allow each to use the other’s patented technology. A patent attorney can provide definitive answers and offer further solutions for patent infringement issues.
I have a new product idea that I want to disclose to third parties. However, I’ve heard that patents are expensive, and I don’t want to invest a lot of money for a patent application unless there is some interest. What can I do to protect my idea?
You should consider filing a provisional patent application. A provisional application provides an inventor with a relatively inexpensive method of filing an application prior to disclosure. Preparing and filing a provisional application is generally less expensive than a traditional patent application since it requires only a disclosure of an invention. It also postpones for up to one year the filing of traditional U.S. and foreign patent applications for the invention, while enabling applicants to benefit from the filing date of the provisional application.