The answer to your question depends on whether the patents at issue are valid and infringed. The infringement portion of the analysis requires an detailed analysis of the patent(s) covering the four ingredients "patented by another cosmetic company." More particularly, claims in each of the patents must be compared with your 8 ingredient cosmetic line. If in fact, the other cosmetic company has an open-ended claim on any one of your ingredients, then there may be patent infringement. That you have more unpatented ingredients will not avoid infringement. The validity portion of the analysis may indicate whether the patents in question are enforceable. There are many reasons why a patent may be unenforceable. For example, if the maintenance fees have not been paid, a patent is not enforceable. It may also be the case that the claims allowed were unnecessarily broad and consequently read on the prior art, thereby being invalid. The patent may also be defective for one or more of a number of technical requirements for a valid patent. As you might surmise the analysis of the claims is a critical starting point to making an infringement determination. But, it is also possible that infringed claims are invalid because of prior art or other failed requirements of a patent. Accordingly, you would be well-advised to seek a clearance or noninfringement opinion of counsel before using "a patented cosmetic ingredient" in your cosmetic line, where such an opinion is based on a complete factual scenario and a thorough infringement analysis including prosecution file history where necessary. Such an infringement analysis may also dictate the need for a validity analysis, if there are claims that appear to be infringed.
Answered on Nov 26th, 2013 at 9:12 AM