Fogarty IP Fogarty IP 2026-06-11T15:56:05Z https://www.fogartyip.com/feed/atom/ WordPress /wp-content/uploads/sites/1605470/2022/05/cropped-fogarty-site-icon-32x32.png On Behalf of Fogarty IP <![CDATA[What should you know about patent infringement?]]> https://www.fogartyip.com/?p=254470 2026-05-14T09:57:49Z 2026-05-14T09:57:49Z What counts as patent infringement? Patent infringement happens when someone creates, utilizes, distributes or brings into the country a patented invention without authorization from the patent owner. This can happen in several ways. Direct infringement is the most straightforward type. It is when someone creates or uses a product that's identical or substantially similar to a patented invention. Indirect infringement is trickier. It includes inducing others to infringe on a patent. It also covers contributing to infringement by supplying components of a patented product. You might think that making minor changes to a patented design would keep you in the clear. That may not always be the case. Courts often look at whether the allegedly infringing product performs the same function. They might also check if it works in the same way. They also examine if it achieves the same result. This is known as the doctrine of equivalents. It can catch you off guard if you are not careful.

How can you protect yourself?

If you hold a patent, monitoring the market for potential infringement should be part of your strategy. Consider conducting regular searches for related products. You may also want to keep detailed records of your invention's development. Documentation can be invaluable if you need to defend your patent rights later. Before launching a new product, you might want to conduct a freedom-to-operate search. This helps identify existing patents that could pose problems for your invention. If you discover potential infringement, it is essential to remember that you have options.

The bottom line

Patent infringement is a serious matter that requires careful attention. Whether you are protecting your own innovations or ensuring you are not stepping on someone else's intellectual property rights, staying informed and proactive is your best approach. When in doubt, consulting with a qualified patent attorney can help you navigate these complex waters.  ]]> On Behalf of Fogarty IP <![CDATA[Best practices when transitioning to new outside patent counsel]]> https://www.fogartyip.com/?p=254469 2026-04-20T15:39:15Z 2026-04-20T15:33:32Z Switching patent firms mid-prosecution puts your entire Intellectual Property (IP) portfolio at risk. Active cases can face delays. Critical deadlines can slip through the cracks. Years of prosecution strategy can disappear if files do not transfer completely. Texas businesses managing complex patent portfolios face these dangers every time they change outside counsel. One misstep can cost you patent rights you spent years building.

Why companies change patent firms

Companies change outside counsel for many reasons. Expertise discrepancies, cost or business shifts. A firm that handled your first U.S. patents may not have the technical know‑how for semiconductors or the experience needed for international filings. If you do not spot those issues early, you risk weaker claims, abandoned applications and missed chances to protect innovations outside the country.

File transfer and continuity risks

Switching patent firms can weaken your IP portfolio. The United States Patent and Trademark Office (USPTO) will not recognize new counsel until it receives proper authorization, and delays can cause missed Office Action deadlines. Incomplete file transfers can leave your new firm without important prosecution history, prior‑art searches and correspondence that shaped your claims.

Critical steps during the transition

Several actions help keep things running smoothly when changing patent firms across Texas, Colorado and nearby states:
  • Identify all pending patent applications, upcoming fee deadlines and active matters.
  • Obtain complete files from the old firm, including correspondence, amendments, prior‑art searches and strategy notes.
  • Confirm any required foreign‑filing licenses and track related international deadlines (see 37 C.F.R. § 5.11).
  • Set up direct communication between outgoing and incoming counsel so they can answer strategy questions quickly.
Skipping these steps can weaken patent protection or lead to abandoned applications that competitors can exploit.

When focused legal experience matters most

Patent work in highly specific fields needs attorneys with technical backgrounds and deep USPTO experience. A firm with years at major IP practices can handle complex cases and maintain consistent global strategies. The difference between a smooth transition and costly disruptions depends on whether your new counsel quickly grasps your technology and history. Your patents represent years of innovation that deserve protection.]]> On Behalf of Fogarty IP <![CDATA[Is a provisional patent application necessary before the product launch?]]> https://www.fogartyip.com/?p=254467 2026-03-10T13:19:34Z 2026-03-10T13:19:34Z What a provisional patent application offers your startup A provisional patent application is like saving your spot in line at the patent office. Think of it as a temporary claim while you work out all the final details. Unlike a regular patent application, it does not need lots of legal paperwork or detailed claims. Instead, you just describe your invention well enough to show what you have created. This simpler process costs less money and takes less time to prepare, making it perfect for smaller companies with limited funds. Crucially, this provisional application gives you something incredibly important: a priority date. This date proves you invented your technology first, which is a huge deal if someone tries to steal your idea later. You also get a full 12 months to make your invention even better, test it with customers, and prepare a stronger, regular patent application.

The 12-month window creates smart opportunities

In essence, your provisional application gives you a whole year to make important business decisions. During this time, you can:
  • Improve your AI technology and add new features.
  • Test your product with real customers and get their feedback.
  • Look for investors and show them how much potential your product has.
  • Adjust your patent claims after checking out what your competitors are doing.
  • Figure out if getting a full patent makes financial sense for your business.
This extra time is vital for new companies that need to confirm their technology works and has a market before they commit to the entire patent process. Meanwhile, your priority date stays locked in, protecting your position.

Public disclosure and the "on-sale bar" can threaten your rights

Here is where many companies make expensive mistakes. Showing your AI product publicly or offer it for sale before filing any patent application could permanently lose your patent rights. The law sets strict deadlines once you reveal your invention or put it up for sale. This rule, called the "on-sale bar," means you usually lose your chance to get a patent if you wait too long after going public. Fortunately, a provisional application protects you from these timing problems. File it before you launch your product, present at conferences, or even talk to potential customers. Your filing date establishes your rights before anyone else sees your invention.

Protecting your innovation starts with smart timing

For companies in Texas developing AI technology, a provisional patent application offers the perfect mix of protection and flexibility. You secure your rights right away while still having the freedom to refine your business plan, attract funding, and confirm your product fits the market. Ultimately, this 12-month period changes patent filing from a rushed decision into a smart advantage that helps you achieve your business goals.]]> On Behalf of Fogarty IP <![CDATA[How does fair use apply to software APIs?]]> https://www.fogartyip.com/?p=254464 2026-02-06T10:25:42Z 2026-02-06T10:25:42Z How and why you use the API determines fair use Courts consider four factors when deciding fair use: purpose, nature, amount used and market impact. If you're repurposing an API for a new function that doesn’t harm the original’s market, fair use might apply. However, if your use mimics the original too closely or serves the same market, that protection quickly falls apart.

The Oracle ruling doesn’t protect most business use cases

In Google v. Oracle, the Court ruled in Google’s favor because Android transformed how the Java API was used. It wasn’t a substitute for Oracle’s product. Most business use cases aren’t that transformative, especially when they compete with or replace the original software, and that makes fair use a risky fallback.

Copying the structure or naming increases your legal risk

Even without copying implementation code, using the same structure, sequence or naming can still lead to infringement claims. Courts don’t just look at the code; they examine the design and organization of the API itself. That’s where companies often get blindsided.

If it’s going to market, it’s time to get advice

Internal prototypes rarely trigger review, but commercial use does. If your team plans to build with or around someone else’s API, an experienced intellectual property lawyer can assess risk, recommend alternatives and keep your product timeline from stalling over preventable legal issues. A quick gut check now can save you from cleanup later.]]> On Behalf of Fogarty IP <![CDATA[5 patent prosecution risks in fast-moving industries]]> https://www.fogartyip.com/?p=254463 2026-01-19T12:19:31Z 2026-01-19T12:19:31Z 5 patent prosecution risks in fast-moving industries Many fast-moving industries thrive in Texas. Semiconductors, energy technology, advanced manufacturing and medical devices all move from concept to market at speed. In your company, you may feel constant pressure to ship, scale and stay ahead. Patent prosecution can support that momentum or undermine it if handled without strategy. The risk comes from filing too fast without protecting long-term business value.

Speed without strategy creates exposure

When your teams move quickly, patent decisions often happen in parallel with product development. In Texas, that speed can mask early ownership and inventorship issues, especially when work is spread across affiliates, contractors or acquired entities. If filings do not match how your business actually operates, gaps appear. Those gaps can limit flexibility later when you expand, license technology or raise capital. You also face global pressure. Many Texas companies may sell nationwide or overseas. Early U.S. filings can trigger foreign filing license rules and a strict 12-month priority deadline. If your company rushes or overlooks those steps, you may lose rights outside the U.S. before you realize it.

Where patent prosecution breaks down

When companies move fast, the same prosecution risks surface again and again. You may not see them at filing, but they tend to appear when the stakes are higher. Common risks include:
  • Filing claims too narrowly to meet launch timelines
  • Creating prosecution history that weakens enforcement later
  • Letting products evolve beyond what the patent actually covers
  • Missing priority or foreign filing deadlines as operations scale
  • Allowing portfolio management to lag behind business growth
These issues are rarely intentional. They arise when companies treat prosecution as an administrative task instead of a strategic function tied to revenue and risk.

The cost of fixing mistakes later

Once a patent is granted, options narrow. Correcting scope issues or ownership problems can be expensive and uncertain. Texas-based companies often face early scrutiny from competitors and potential partners. A weak portfolio can limit your leverage before any dispute begins. Strong prosecution helps you avoid problems rather than react to them.

Built to move fast without losing ground

You do not need to slow innovation to protect it. You may benefit from patent counsel who understands how fast-growing Texas companies operate and how prosecution choices affect future value. When your filings align with your business strategy, patents support growth instead of becoming a hidden liability.]]> On Behalf of Fogarty IP <![CDATA[How assignment agreements protect your proprietary rights in Texas]]> https://www.fogartyip.com/?p=254462 2025-12-16T09:48:00Z 2025-12-16T09:48:00Z You hire a talented engineer who develops a groundbreaking invention using your company's resources. Months later, they leave and claim ownership of that creation. Without proper documentation, you could lose rights to something your business helped build. Unfortunately, this scenario happens more often than you might think. That's why understanding your proprietary rights is the first step toward preventing this situation.

Understanding your proprietary rights

Proprietary rights cover valuable assets your company owns. These include trade secrets, inventions, creative works and specialized processes. Naturally, when employees or contractors create something during their work, questions about ownership can arise. As a business owner, you need clear boundaries to protect what belongs to your company. Keep in mind, though, that simply creating these assets doesn't mean you automatically own them. You still need a legal process to secure these rights.

How rights transfer to your business

Here's the reality, rights don't automatically belong to your company just because someone works for you. In fact, Texas law requires proper documentation to transfer ownership. This is exactly where assignment agreements become essential. These legal tools move intellectual property rights from individuals to your business. But what exactly are these agreements, and how do they protect you? 

How assignment agreements work

Simply put, an assignment agreement is a contract where employees, freelancers or contractors transfer their invention rights to your company. This document clearly states that any work created during employment belongs to the business. In Texas, these agreements must meet specific requirements to hold up in court. With that in mind, here are the key elements your agreement should include:
  • Identify all parties: List the names of both the company and the individual signing the contract.
  • Describe the rights being transferred: Spell out exactly what inventions or creations the agreement covers.
  • Include proper consideration: Provide something of value, like employment or payment, in exchange for the rights.
  • Use clear language: Write the agreement in plain terms that everyone can understand.
Ultimately, a well-drafted agreement prevents disputes before they start. To make sure your documents meet all legal standards, consider working with a qualified attorney.

Create strong agreements with legal help

At the end of the day, protecting your proprietary rights requires more than a template from the internet. Each business has unique needs that demand customized solutions. An experienced patent attorney can help you draft assignment agreements that comply with Texas law and federal regulations. Don't leave your company's innovations vulnerable. Take action now to secure what you've worked hard to build.]]> On Behalf of Fogarty IP <![CDATA[3 common intellectual property mistakes that businesses make]]> https://www.fogartyip.com/?p=254461 2025-11-24T15:45:39Z 2025-11-24T15:45:39Z Neglecting IP protections Some businesses assume that what they create will receive automatic rights to the IP, such as:
  • Patents: It protects new inventions that can be used in industry, such as chemical formulas, machines or technical processes.
  • Trademarks: It protects names, logos or designs that show customers your products or services are different from others.
  • Copyrights: It protects creative works like books, music, software code, photos and paintings that exist in a physical or digital form.
  • Trade secrets: It protects confidential business information such as recipes, production methods, customer lists and pricing plans.
Without these, your business risks having its ideas copied or facing legal disputes with competitors.

Missing elements in independent contractor agreements

IP ownership often surprises business owners who believe that the company automatically owns everything created by their team. But this is not always the case. Work made by an employee as part of their job usually belongs to the company. But when a company hires independent contractors such as freelance designers, software developers or marketing consultants, the contractors usually keep ownership of their work unless a contract clearly transfers it to the company. Without a clear agreement, a contractor’s work might legally belong to them rather than the business. Many employment and contractor contracts do not clearly address the IP concerns and when this happens, disputes over ownership can appear if an employee leaves or after they have finished working on a project.

Revealing innovations before securing protections

In the United States, revealing an invention to the public without filing a patent application within one year can result in the loss of patent rights. This begins when the invention becomes public through presentations, publications, sales or detailed discussions at trade shows. After this period, patent protection is no longer available. Public disclosure can occur in ways that are not immediately obvious. For example, demonstrating a product at conferences or running beta testing programs can trigger this one-year period. If your business has plans to unveil a project, enlisting the help of a lawyer familiar with IP laws can provide you with guidance on the subject and help you further protect the best interests of your business.]]> On Behalf of Fogarty IP <![CDATA[4 ways patents legally protect your company’s innovations]]> https://www.fogartyip.com/?p=254460 2025-10-17T08:02:34Z 2025-10-17T08:02:34Z Your company’s products and innovations are valuable assets that need protection. You can’t afford to let competitors copy your ideas and profit from your hard work. Thus, patents are a way for you to safeguard your proprietary rights and maintain your advantage over competitors. 

What are patents

According to the United States Patent and Trademark Office (USPTO), patents are a type of intellectual property (IP) awarded to inventors that gives you exclusive rights to your inventions. If you’re a business owner, this also includes innovations on systems and processes that are unique to your company. Typically, you can patent three types of inventions:
  • Utility: It is a type of patent that protects how your invention or processes can be used. You can use this patent on new machines, software, business frameworks or chemical formulas. 
  • Design: It is a type of patent that protects how your invention or brand looks. You can use this on the ornamental design of your products. 
  • Plants: It is a type of patent that protects that process of inventing and reproducing new plant types. 
Thus, competitors cannot copy your products and systems even if they understand how they work. Your patents can legally block them from profiting off your intellectual properties. 

How patents protect businesses

Patents act as a deterrent to keep people from stealing your business ideas while offering you the freedom to keep innovating. Here are four different ways a patent works to protect your business: 
  • Exclusive rights: You can control who makes, sells and uses your inventions and innovations. 
  • Legal enforcement: You can stop people from infringing on your exclusive rights if they don’t have your permission.
  • Protection from public disclosure: You can safely discuss your inventions and your processes with the public without fear of losing your exclusive rights. 
  • Competition Deterrent: Your competitors cannot directly copy your products and services thereby giving you an edge in the open market. 
Hence, patents serve as your competitive shield in the business world. They protect your company by making sure that your unique products, services and systems remain under your ownership no matter what. 

Why you should start investing in patents 

Patents are more than just legal documents. You can consider them as important business tools that are essential in keeping your best interests protected. Thus, they afford you protections that translate into real financial benefits for your company in the long run.  Most business owners often seek advice from professionals in the IP industry so that they can focus more on growing their discoveries instead of getting tied up in paperwork. Taking steps now to secure your innovation sets your business up for sustainable success and industry leadership. ]]> On Behalf of Fogarty IP <![CDATA[Why invest resources in provisional patent applications?]]> https://www.fogartyip.com/?p=254458 2025-09-24T14:47:10Z 2025-09-24T14:47:10Z Effectively protecting intellectual property can help businesses to maintain their competitive edge within their industry, specifically, and within the marketplace more generally. Filing provisional patent applications can help companies to achieve this often-consequential goal.  While filing a successful provisional patent application will not result in an issued patent on its own, a provisional application creates a foundation that can strengthen a company’s chances of success when it comes to securing a non-provisional patent. For this reason, investing resources in a provisional application can be a smart business decision.

The provisional patent application process can be undeniably valuable 

A provisional patent application allows an inventor or business to secure an early filing date with the United States Patent and Trademark Office (USPTO). This is important because U.S. patent law operates on a “first to file” system. By filing provisionally, a company can establish priority, protecting its place in line while continuing to refine an invention and its corresponding non-provisional patent application (which can take months to complete). This prevents competitors from filing first, which could otherwise block or limit future rights. Once filed, businesses have 12 months to file a non-provisional (or full) patent application that claims the benefit of the earlier filing date secured by the provisional filing date. This period gives companies time to test a product, attract investors, evaluate market potential, etc., before finalizing their full application. For startups and growing businesses, this breathing room can be invaluable when it comes to safeguarding innovation from claims of prior art.  Of course, the quality of a provisional application matters. Having “patent pending” status is not going to matter much if a company’s provisional application is structured so poorly that it doesn’t support the design outlined in its corresponding non-provisional application. Incomplete or vague filings may not provide the protection companies expect. As a result, working with a skilled legal team at this phase of development is generally very wise.  ]]> On Behalf of Fogarty IP <![CDATA[USPTO announces expansion of prioritized exam system]]> https://www.fogartyip.com/?p=254455 2025-08-24T21:33:26Z 2025-08-24T21:33:26Z The USPTO expanded its expedited review program Unique programs can make patents more accessible for specific types of businesses. Certain patent applicants are eligible for priority or expedited consideration. In recent years, there have been pilot programs for cancer treatment patents, for example. The prioritized patent examination program, also known as Track One, allows innovators to potentially prosecute a patent in under 12 months in some cases. Companies with cutting-edge products can then begin producing and distributing those new products with enhanced protection. The USPTO has historically accepted 15,000 Track One applications each year. However, in June 2025, the USPTO announced a major expansion of the Track One program. Now 20,000 patent applicants each year are eligible for Track One processing. Requesting expedited processing when submitting a new patent application doesn’t even automatically increase application costs. Typically, Track One processing is available for companies requesting a plant or utility patent. Organizations seeking to expedite the patent prosecution process often choose to outsource application paperwork and all patent maintenance responsibilities to specialized professionals. Frequently, neither business leaders nor general practice in-house counsel can adequately manage patent applications with the optimal level of efficiency and success. Requesting Track One processing is a way for companies with cutting-edge ideas to protect those concepts and get them to market as quickly as possible. Organizations that may qualify for Track One patent processing may require assistance while seeking to take advantage of this new opportunity, and that’s okay.]]>