How do I use someone else’s patent?

How do I use someone else’s patent?

I came up with an idea only to find out later that it is already patented by someone else. It’s about putting advertisements in e-books. Can I use the idea anyway or do I need to contact him and buy the patent?

Patent Attorneys can analyse the patent and see what they cover. You may have discovered something that the patent does not cover. If so, you can protect this in a patent of your own, which can give you a stronger bargaining position when you are negotiating licenses or trying to leverage your invention.

To use a granted patent, you must have a license, or you might be able to buy it. You need to negotiate with the patent holder and get a license. Alternatively, you can partner up with a patent attorney and try to design around the patent so you do not infringe the patent.

Patents are territorial. What infringes a US patent might be available in Australia. Patents can also have different coverage. For example, the US patent might be narrow due to a fight with the examiner or a third party and the equivalent Australian patent might be broad. Never assume that because you know about one patent in one territory that the same will apply to other territories. Get your patent attorney to check the status and scope of the patent in each territory you want to exploit it in.

Even if the patent exists and your product will infringe it, note that not all patents are valid. You can apply for re-examination to knock out invalid patents, especially business method and software patents.

Mark Warburton About the author

The Intellectual Property Guru. His determination to protect innovation stems from a family legacy in which his grandfather, a genius inventor, had his innovations stolen and patented by someone he trusted, which led to his grandfather dying a pauper on a park bench. Mark is an international award winning lawyer and patent attorney and 3-time published author. His prowess in the court room sees him winning cases that others thought were unwinnable. Mark’s passion for protecting intellectual property shines through in his pro-bono legal mentoring, proactive legal workshops and 1-2-1 work with clients.