Your Invention Was Knocked Off. What Can You Do About It?

Gator-Grip patents have expired. That's why so many knockoffs exist today.

If your invention idea is successful it will be copied. That's a simple fact that every inventor must face. Patents, trademarks and copyright (collectively known as intellectual property or IP) are tools you can use to fight the copies. But how do they actually work?

The #1 thing to know is that you have to enforce IP on your own. The government doesn't do it for you. It is up to you to inform the infringer that they are infringing and then either negotiate a settlement or sue them in court to make them stop. You need to be careful how you do this. Accusing a company of infringing your IP can give them a basis for suing you. That's why it's wise to get experts involved.

Patent litigation that goes all the way through jury trial and appeals can easily cost $5,000,000+. On the other hand, Amazon will take down a product that infringes your registered trademark for $0. Amazon enforces copyright similarly.

High cost of patent enforcement is one reason for an independent inventor to seek a licensing deal with a larger company. It's also a reason to add trademark and copyright to an IP portfolio for multi-layered, lower cost enforcement options.

The #2 thing to know about patents is that they are limited in what they protect. The best you may do in enforcement is to push the copy cat to make changes to their design to avoid infringing your specific patent claims. It is rare for a patent to stop them in their tracks.

The #3 thing to know about patents is that a common settlement is to license your patent to the infringer in return for a royalty. Getting an infringer to flush their investment in tooling and inventory down a toilet is hard.

If you believe your patent has been infringed you should get an expert opinion before taking action. A formal opinion from a patent attorney could cost $10,000. A non-legal business opinion from an engineer familiar with patents will cost far less.

Even if you believe that patent infringement is clear, understand that once your patent is put under a microscope in a courtroom, your certainty will be severely tested. It's almost always best to negotiate a settlement before going to court.

I love lawyers. Lawyers are some of my best friends. I could have been one. But they are expensive and make honest, solution seeking conversations between business people almost impossible. That's why I always like to try and speak with an infringer before pulling the lawyer trigger. As I said above, it has to be done carefully. Many companies will refuse to engage. But a non-threatening conversation is worth a try if you can manage it.

If you'd like feedback on your IP and how you might defend it or expand it, you can contact Invention City for a business oriented review and recommendations here.

- Mike Marks

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