In a products liability design defect action, evidence establishing the defectiveness of a product is paramount to a plaintiff’s case. Some jurisdictions require the plaintiff to bear the burden of offering evidence of a safer design (often defined as a “reasonable alternative design” or “feasible alternative design”). Similarly, plaintiffs may be required to produce evidence that a manufacturer of an allegedly defective product was on notice of the product’s defect and failed to remedy the product. Often, the potential evidence, for either side, that is available through the teachings of patents is overlooked. Conducting a patent search and an investigation of the state of the patent art may yield fruitful evidence regarding the defect or relative safety of the product at issue in a products liability action. But first some background to set the environment for how patents become patents.

The primary advantage of a patent is to secure to the inventor the right “to exclude others from making, using, offering for sale or selling the invention throughout the United States.” However, the patent applicant must give something to the public in return for this period of exclusivity. The patent applicant is required to disclose sufficient information in the patent application to support the subject invention and to justify the patent’s claims. The drawings and specification of a patent application must include (a) a specification as set forth in 35 U.S.C. §112; (b) a drawing as expressed in 35 U.S.C. §113; and (c) an oath by the applicant as expressed in 35 U.S.C. §115. While all of these things are required, it must be remembered throughout the remainder of this article and any use of patents that the U.S. patent examiner does not pass on the commercial merit or the practicality of producing the invention. The examiner is concerned with the applicant meeting the statutory requirements for a patent rather than the likelihood of the invention being a market success. Accordingly, the patent search needs to be conducted by someone with an understanding of the technology and the specific problem or defect at issue.

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