For patent buyers

How to buy a patent

Buying a patent is buying a property right, and like real estate, the question that matters most is whether the seller can deliver clean title. Here is the process, start to finish, and the diligence checklist buyers use before they close.

The process in five steps

  1. Find the patents. Most sales run through brokers, who market packages on behalf of operating companies, universities, and inventors. Direct deals between companies, auctions, and bankruptcy sales are the other common sources.
  2. Screen them. Read the claims against the products or standards you care about, and check status and remaining term. Most packages are ruled out at this stage.
  3. Run due diligence. Confirm the seller owns what it is selling and that nothing in the record limits what you are buying. The checklist below covers what to verify.
  4. Sign the purchase agreement and assignment. The agreement carries the price and the seller’s representations (ownership, no undisclosed licenses or liens). The assignment transfers the patents and should expressly include the right to sue for past infringement if you want it.
  5. Record the assignment and take over maintenance. Record with the USPTO promptly, ideally within three months (see 35 U.S.C. 261), and update the correspondence and fee address so maintenance fee notices reach you.

Patent purchase due diligence checklist

Ten things to verify for every patent before closing. The first two come straight from the USPTO assignment record; the rest need the seller’s disclosures and other public sources.

  1. 1

    Ownership and chain of title

    The seller must be the owner of record. Trace every recorded conveyance from the inventors to the seller, and get an explanation for any inventor without a recorded assignment or any assignor who never received rights.

  2. 2

    Liens and security interests

    Any recorded security interest without a matching release means a lender may still have a claim. Require a release, recorded at or before closing.

  3. 3

    Existing licenses and covenants

    Licenses are usually not recorded, and a buyer generally takes the patent subject to them. Ask the seller to list every license, covenant not to sue, and standards commitment, and back it with a representation in the agreement.

  4. 4

    Maintenance fees and status

    US maintenance fees are due 3.5, 7.5, and 11.5 years after grant. A missed fee means the patent has expired. Confirm the status and when the next fee is due.

  5. 5

    Remaining term

    Term generally runs 20 years from the earliest non-provisional US filing date, adjusted by patent term adjustment and cut short by any terminal disclaimer. Calculate it per patent; a portfolio is only worth its remaining life.

  6. 6

    Validity and challenge history

    Check PTAB for past or pending inter partes reviews, reexaminations, and any litigation where validity was decided. Prior challenges, and the art cited in them, shape what the patent is worth.

  7. 7

    Government rights

    Patents from federally funded research carry Bayh-Dole obligations, including a government license. Look for a government interest statement in the patent and a confirmatory license in the assignment record.

  8. 8

    Standards commitments

    If the patent was declared essential to a standard, the FRAND commitment generally follows the patent to the buyer. Check the standards body declaration databases.

  9. 9

    Inventor availability

    If you plan to enforce or keep prosecuting the family, you may need inventor declarations or testimony. Find out whether the inventors are still reachable and still with the seller.

  10. 10

    Family members and continuations

    Decide whether you are buying the whole family, including foreign counterparts and pending continuations. Splitting a family between owners can create problems later.

Start with ownership

Every other question assumes the seller owns the patent outright. If an inventor never assigned, or a lien was never released, the buyer can end up with less than full title, or with a title problem that surfaces only when the patent is asserted and the defendant questions standing.

You can check a single patent now with the free patent ownership check. For a package, Patencial runs the same check on every patent at once, adds where the inventors are today, and cites every finding to its USPTO reel and frame.

Frequently asked questions

Can anyone buy a patent?

Yes. A patent is property and can be sold to any individual or company. The sale is done with a written assignment, which should be recorded with the USPTO.

Where can I find patents for sale?

Most patent sales go through brokers who market packages from operating companies, universities, and individual inventors. Patents are also sold directly between companies, at auction, and out of bankruptcy proceedings.

Does buying a patent give me the right to sue for past infringement?

Only if the assignment says so. The right to recover damages for infringement that happened before the sale stays with the seller unless it is expressly assigned, so buyers who plan to enforce usually require it in the assignment.

Do existing licenses survive the sale?

Generally, yes. A buyer takes the patent subject to licenses the seller already granted, and licenses are usually not visible in the public record. That is why the seller should list them and stand behind the list in the purchase agreement.

Do I need to record the assignment?

Yes. Under 35 U.S.C. 261, an assignment not recorded within three months of its date can be void against a later buyer who paid for the patent without notice of it. Recording promptly protects you against the seller selling the same patent twice.

How long does patent due diligence take?

For a single patent, a basic ownership and status review takes hours. For a portfolio, verifying chain of title patent by patent traditionally takes days of paralegal or attorney time. Automated tools such as Patencial reduce the record review to minutes and leave the judgment calls to counsel.

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