I recently watched the movie Joy. It is an inspirational tale of success. It also is a cautionary tale to entrepreneurs about making sure you have retained appropriate legal counsel.
In the movie, Joy receives some poor advice from attorneys which she fortunately overcomes.
1. Joy relies upon her investor's attorney for a patent search and the analysis of the search results. According to the attorney, there is a third-party patent for a self-wringing mop that might cover Joy's invention and that Joy should pay a royalty to the third-party.
Unfortuntately for Joy, the investor's attorney wasn't a patent attorney and thus wasn't able to perform a patent infringement or patent invalidity analysis.
2. A California patent attorney tells her that because she paid a royalty to the third-party that all of her parts and molds fall under the umbrella of the third-party patent, and that it is impossible to fight it.
First, while paying royalties creates the impression that the Joy's invention may fall under the third-party patent, it does not make it so. People pay royalties for a variety of reasons including because it is easier to pay a royalty than the fight it out in court. Second, it is always possible to fight a case (if you have the resources).
Joy also isn't a patent attorney and during the climax she makes a few statements that while great for a drama are besides the point.
1. She states that the inventor of the third-party patent is not aware of the value of his patent, and hasn't sold or manufactured a product. These factors are irrelevant to the issue of whether patent claims cover an accused product.
2. She states that her mop doesn't bear any similarities to the third-party's mop. This is the wrong comparison. You have to compare the patent claims to the accused product.