QUESTION
Would I be safe to start a business of importing a product that is similar to other businesses?
Asked on Sep 28th, 2011 on Patents - California
More details to this question:
I am looking at starting a business. The most economical way to do this is to import the product. I see several other businesses that promote the same type of product. One of these list several patents that they own on their equipment and they say that because of non infringement laws that no other company can manufacture, import or sell this type of product. Some of the other companies also list patent numbers that they own but make no such claim. I think a patent is good for 20 years if I am correct. Looking at the history of this technology and similar products they actually date back to the 1930's. Some articles I have read state that the technology is now in the public sector and can be manufactured, imported or sold. The products I am looking at are Air to Water generators for homes, offices and larger applications. Would I be safe in starting this business?
3 ANSWERS
Patent Prosecution Attorney serving Troy, MI
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Young Basile Hanlon & MacFarlane P.C.
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The owner of a valid enforceable unexpired US patent has the right to determine who makes, uses and sells products that are covered by the claims in the patent. There are four requirements in my last statement. 1. The patent has to be valid. Or more specifically, the claims of that patent have to meet the requirements of novelty, utility and non-obviousness. A patent is presumed to be valid when issued by the USPTO but the claim scope is bounded or limited by the prior art, statements and actions taken during prosecution of the patent application at the USPTO and even by statements made in the patent specification itself. 2. The patent has to be enforceable. The Courts will not be permit enforcement of a patent that has been obtained by fraud. 3. The patent has to be unexpired. The maximum life of most patents is 20 years from the earliest application date. Patents can go into the public domain earlier if the patent maintenance fees are not paid in a timely manner. 4. One or more claims of the patent in question must read on the competitive device. As you can appreciate, you have asked a question that is very situation sensitive. The particular answer in your case will vary depending on the configuration of you device as well as the patent(s) in question. If you are concerned about potential accusation of patent infringement, the first step would be to have this reviewed by a patent attorney. This review will help you to better assess your risks in the area and perhaps even suggest a way to design around one or more of the patents in question. Depending on the relationship you have with you manufacturer, perhaps you can negotiate some terms that indemnify you against allegations of infringement.
Answered on Sep 29th, 2011 at 10:12 AM
Based on your fact pattern I cannot answer you. I must know exactly what you are importing and exactly what the patents are that concern you. Then a proper infringement analysis can be performed.
Answered on Sep 29th, 2011 at 8:02 AM
There is nothing "safe" about starting a business, especially in California. You might try to see if your prospective suppliers will indemnify and defend you if you are sued and put that in writing. You can also take exemplar products or specs to a patent attorney and see what the status is of the potentially infringed patents and if your would-be product reads on the claims (or infringes).
Answered on Sep 29th, 2011 at 7:48 AM