As a former patent examiner once examined 200+ patent applications, a former patent prosecutor who drafted 300+ patent applications, a former patent litigator who litigated 30+ cases in district courts, and now a founder, I can unequivocally tell you that you should.
Critics typically point to the possibility of inequitable conduct as a means by which to discourage companies from conducting prior art searches before patent filings. But ever since the U.S. Supreme Court has raised the standard for proving inequitable conduct, it is almost impossible to allege an inventor knowingly and intentionally deceived the patent office by concealing prior art references that are unknown to the inventor. With this concern no longer a viable one, there are no factual bases to argue otherwise.
With that said, conducting prior art searches is particularly important to startups and small businesses because of the significant financial resources and serious business capital that they would have to commit to the patent prosecution process. The same is not necessarily true for larger corporate entities because abandoning one patent application is likely going to be negligible in the grand scheme of things, both from the financial and business perspectives.
Should you hire an experienced patent attorney to review existing patents for infringement? I would counsel against it if you are a small entity. DataNovo (www.datanovo.com
), a new AI-based prior art startup, can give you all the relevant prior art in seconds based on a short description of your product. You can then decide whether to proceed with patent filing. It is much cheaper than conventional means and far quicker.
If there are patents that cover your idea, it's not the end. There are ways around it. This is where good attorneys really pay off, which is one area where you want to commit your capital. The key is to save on the front-end and spend on the back-end, much like software development. Ping me privately so I can give you my personal insights on how to differentiate good v. bad patent attorneys (as a few have done here on FD).