Is a patent with a very broad and all-inclusive description valid & enforceable?
We have a small business and are developing a new product that we want to submit a patent application for. There is currently already an existing patent for a similar product, and the description has been written very broadly to include a umbrella statement that says their patent covers all sizes, shapes, materials and other variations of their product. Is such a broad statement actually allowed and enforceable by law or are they just trying to scare others into entering the market?
Hello and thanks for your question. It is helpful to consider whether the product you are looking to develop is patentable right from the word go before you spend too much time and money on the new product. Patent protection is a long lasting and strong intellectual property right once you have it in place. The existing patent owner here seems to have a very broad set of claims some of which may or may not be defensible.
We would recommend seeking professional advice from a patent attorney specialising in the relevant industry for your product. e.g. technology, engineering, chemistry etc or contacting an intellectual property lawyer. Both will be able to assist you to determine whether the scope of the existing patent has been drawn too broadly and is subject to attack. It will also be helpful to confirm that the product you are seeking to develop does not infringe on the existing or other patent owner's rights (ie conducting a freedom to operate search). Depending on the situation you may be able to negotiate an appropriate licence with the patent owner, develop a product outside the claims and seek your own protection or challenge their patent in some way. Good luck with next steps.
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In addition to Dudley's answer, patent attorneys generally deal with advising on patentability, preparing patent applications and conducting searches to determine whether your product might infringe something that is already registered. Other work, such as patent licensing and litigation, is done by a lawyer. Some patent attorney firms have lawyers on staff who do this work. In other cases, patent attorneys work with an external lawyer on these issues, or the client consults the lawyer first and the lawyer helps the client choose a patent attorney with the appropriate technical expertise for the product.