How do we determine our legal risk regarding IP?

As a trademark attorney, I could inform you that to avoid any infringement liability (both ways) with respect to any name you adopt for your product or service, you should consult a trademark attorney to conduct a trademark clearance search. You can usually find the trademark attorney and patent attorney in the same firm and oftentimes in the same person (but the U.S. separates the fields more than other countries).

Regarding trademark risk, your trademark search must include all countries you plan to do business in. Searching the U.S. only will not reveal your global risk. Even if your unregistered trademark does not have any exact registrations, you need to evaluate similar names especially in your product category. Fighting trademark oppositions can be as costly and problematic as direct infringements.

Risk can also come from counterfeits and look alike products. You may evaluate your risk there by researching competitor products and their exposure to counterfeits.

You have not stated whether you have issued patents and if so, in what countries or if you are actively filing for a proprietary position. Hopefully, you have had professional prior art searches that meet the standards under the America Invents Act performed. If your patents issued, you need to know the strength of your position by obtaining a professional validity search and opinion. To know if you are free to commercially market your product without obtaining license(s), an infringement search on each element of issued independent claims must be performed in the same, similar, or collateral fields and results incorporated into an infringement opinion. This search should uncover is anyone is infringing any element of your claims. Based on the breadth and strength of your present and future claims, a reputable patent practitioner should advise you on the likelihood of a patent challenge and whether your IP will be preserved throughout post AIA trial proceedings.Case law provides the basics for the practitioner providing you with informed risks and strengths.

Your risk regarding IP is also directly related to your ability to raise capital with VC's so in many respects, the answers to your questions involves BOTH corporate and securities law on the one hand and IP law, especially patent law, on the other hand. Your investors will want to know how much IP you may have that can be an asset and determine a potential revenue for now into the future. They will need to know that you have the ability to prevent competitors from copying your products. So, Your technology and products will need to embody intellectual property, be it patents, trade secrets, copyrights, or trademarks, that are perceived to be valuable. A qualified IP attorney can assist you in obtaining and procuring these rights on an international basis. The risk that someone may attempt to infringe or violate your IP will depend on how strong your competitors may be and how good your IP will be once you obtain it. Finally, Your investors and you will need to make some decisions about how much enforcement of your rights will be required to protect the niche you carve out of your market. Depending on how big of a market niche you create, you may want more sophisticated analysis such as IP landscape or other type analysis from an IP professional if the cost is worth it.

On the flip side, you will also want to know that your products and services do not infringe the rights of third party patents, trademarks, and copyrights. You can hire an IP and/or patent attorney to perform clearance searches and infringement analysis to help you assess your risk of infringement.

If all of this is sounding expensive, it is. You should budget all of this to better determine how much capital is required before you go to market? Can you bootstrap much of this and go to market without all of these costs? Sure, but each thing you forego may affect the amount of risk involved. In the end, you will need to balance the legal risks with the business risks and make some decisions. Sort of like buying business insurance. You never really know how much you need exactly but you always know that more is better than less. Good luck!

It seems that you effectively have a two-part question - 1) how do you determine if you might be infringing someone else's patent rights; and 2) how do you determine if someone is infringing your patent rights.

With respect to 1), you can have a professional patent attorney do an infringement study so as to uncover any patents that your invention may infringe based upon your disclosure of your invention and the claims of any patents in question.

With respect to 2), understand that you effectively have no real patent rights at all until your patent issues. When you have a patent application on file, and particularly after the patent application is published, you are effectively giving notice to the world that you may eventually obtain a patent and third parties should therefore be aware of the fact that their products, systems, methods may infringe your patent but your patent rights are not solidified until the patent issues. In addition, patents are often misunderstood - patents do NOT provide the patent holders with a right to manufacture their own patented invention - patents provide the patent holders to prevent others from making, using, or selling the patented invention and thereby infringing the patent.