The software development company may consider the following options in the same order mentioned below:
- Patent infringement analysis
- Product re-engineering
Patent infringement analysis:
In patent law, it is the "claims" that defines the metes and bounds of an invention. In other words, claims define the scope of patent right.Infringement analysis is performed to determine whether a product or a process infringes upon an existing patent claim.In infringement analysis, the scope of the claim should be determined and should be checked whether all elements of the claim are present in the product or process.
Infringement analysis is started by reading the claims mainly concentrated on the independent claims, if you don't infringe the independent claims, you won't be infringing the dependent claims (which are narrower, by definition). If you are not infringing on the independent claims then you may argue during the litigation that your fantastic product is not infringing on the patent owned by the Evil corporation. In-case, you are infringing on the independent claim then you may consider the next step.
The next step is invalidating the patent owned by Evil corporation.Invalidation means proving that a patent was wrongly granted and having the same revoked. This approach can be used when there is a good probability of invalidating the relevant patent(s). Invalidation, is an effective approach in some cases, it can be a time-consuming affair, as invalidation proceedings are generally carried out in courts.
The final step that can be considered is product re-engineering. During this step a freedom to operate study may be advised. A Freedom to operate provides an analysis to minimize the risk of getting sued by others. Further, also dig out patents, which have
expired (in most countries its 20 years). There may be many useful technologies which can be used from these expired patents. Finally, you may find a list of patents that are relevant to your product/technology and helps you craft a strategy.
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