Patent Infringement and Manufacturing

[ramonegumpert]

Dear Friends,

Although i am not a inventor nor a business man, I do have a question about manufacturing and wish to get some comments on it.

Is it true that for any product that you intend to manufacture and sell to the market, you must check all the patents and avoid infringement of patent rights even if the idea genuinely came from you and you never referenced any other existing patents?


Thanks for reading.

Have a nice day.

sincerely
Ramone

 

[Astronuc]

Dear Friends,

Although i am not a inventor nor a business man, I do have a question about manufacturing and wish to get some comments on it.

Is it true that for any product that you intend to manufacture and sell to the market, you must check all the patents and avoid infringement of patent rights even if the idea genuinely came from you and you never referenced any other existing patents?


Thanks for reading.

Have a nice day.

sincerely
Ramone

Not necessarily. If one was to manufacture some basic product, like a pot or pan, where the design/product has been in the public domain for some time, e.g., two decades, then one does not need to do a patent search. If one is manufacturing a highly engineered product, one which requires a fair amount of engineering (several parts/components), then one would likely have to do some search to determine if one is infringing on a patent. Of course, one could proceed at risk, and then wait to be sued by the patent holder.

 

[Moonbear]

Dear Friends,

Although i am not a inventor nor a business man, I do have a question about manufacturing and wish to get some comments on it.

Is it true that for any product that you intend to manufacture and sell to the market, you must check all the patents and avoid infringement of patent rights even if the idea genuinely came from you and you never referenced any other existing patents?


Thanks for reading.

Have a nice day.

sincerely
Ramone

The answer is yes. Even if something seems "obvious" or you think you are the first to have ever thought it up, there is no guarantee that it is not already patented. And, you need to check on elements of your product design too. For example, in Astronuc's pots and pans example, while pots and pans themselves are not a new thing, you might find out that a particular handle design is patented or trademarked, or the process of applying a non-stick coating is patented, or the lid design is patented, etc.

In the grand scheme of things, if you're going to invest into a business manufacturing a product, at the same time you're getting a lawyer to look into issues like ensuring your business name is free and clear of trademarks, have them do a patent and trademark search on the product you're planning to manufacture. That sort of search is relatively inexpensive compared to getting sued for infringement, and if the lawyer misses something, at least you can show that YOU exercised due diligence by having the search done (it'll put your attorney's malpractice insurance on the hook for liability rather than your personal assets if you can show later that they were the ones who screwed up, not you). Getting and defending a patent is very expensive, but the basic search isn't, since a lot of that can be done by a paralegal, patent agent, or even the science advisors in a patent firm, and then just reviewed by an attorney. If they do find something you'd infringe upon, they can also provide advice about whether some changes to your product would avoid that infringement, or if there's a possibility to obtain a license from the inventor to manufacture their product.

Starting a business is expensive and comes with a lot of risk. Anything you can do to minimize the risk and avoid losing your investment is worth the cost up front.

 

[ramonegumpert]

Thanks to Astronuc and MoonBear for your advice.

i feel that the need for patent while generally good can have a side effect of discouraging creativity as anyone who has an idea has to first do a thorough search for existing patents and many grey areas may exist such as techniques described in different patents may look similar to yours. Is this not a time consuming and costly process?

I wonder is there infringement if a patent covers a technique that is not used in the same application as my product but i also use this technique? Is that considered an infringement? Is a patent specific to a certain application only? what if i apply the technique in a different application ? eg. an existing patent has a technique that is used in an agricultural application and i intend to use it in a space shuttle?

 

[Astronuc]

Thanks to Astronuc and MoonBear for your advice.

i feel that the need for patent while generally good can have a side effect of discouraging creativity as anyone who has an idea has to first do a thorough search for existing patents and many grey areas may exist such as techniques described in different patents may look similar to yours. Is this not a time consuming and costly process?

I wonder is there infringement if a patent covers a technique that is not used in the same application as my product but i also use this technique? Is that considered an infringement? Is a patent specific to a certain application only? what if i apply the technique in a different application ? eg. an existing patent has a technique that is used in an agricultural application and i intend to use it in a space shuttle?

It depends on how the claim is phrased. Products and processes can be patented. One may claim a product and parts, and also the method (process) of manufacturing that part.

 

[TheStatutoryApe]

I wonder is there infringement if a patent covers a technique that is not used in the same application as my product but i also use this technique? Is that considered an infringement? Is a patent specific to a certain application only? what if i apply the technique in a different application ? eg. an existing patent has a technique that is used in an agricultural application and i intend to use it in a space shuttle?

I think this is one of the areas where things get a bit dicey. If a person has a patent for a 'technique' that can be used in multiple cross market applications then they should have patented only the technique and not specified a particular application. They may give an example of the application of the technique in the patent, though, since I do believe that patent applications require descriptions of the use of the invention. Even if the patent does specify a particular application, if your use of the technique is sufficiently similar, you will still be infringing upon the patent. The test here would most likely be whether or not your reapplication of the technique involves some novel approach not immediately obvious based on the contesting patent. If your reapplication involves the use of what might be considered a separate technique, in conjunction with the already patented technique, then you may only be capable of patenting this separate technique and still be required to obtain proper permissions for the use of the original even if this new technique is useless without it.

Moonie can probably give better or more in depth insight here but I think this is fairly accurate.

Edit: Also note that even if you are fully within your rights and have genuinely created a novel patent that will stand up in court this will not prevent a person or company holding a significantly similar patent from suing you. They may lose in the end but you will be required to go to court and pay a lawyer to defend your patent. A well moneyed corporation with a significant financial interest could very well attempt to defeat you in court through attrition; drawing out the court case and complicating it to such an extent that you will be bankrupt and need to drop your case before you can see it through.
I do not mean to discourage you here, only point out the possibilities. One should be very careful of whose toes they may step on.