The Intellectual Property Law Server

Welcome, Guest. Please Login or Register.
Oct 28th, 2020, 1:08am

Forums Forums Help Help Search Search Members Members Calendar Calendar Login Login Register Register
   Intellectual Property Forums
  
  
I have an Invention ... Now What?
(Moderators: Forum Admin, JimIvey, JSonnabend)
   Patent protection clarity please
« Previous topic | Next topic »
Pages: 1 2 3  Reply Reply Send Topic Send Topic Print Print
   Author  Topic: Patent protection clarity please  (Read 2273 times)
Richard
Newbie
*




   


Posts: 6
Patent protection clarity please
« on: Jan 1st, 2005, 2:05pm »
Quote Quote Modify Modify

I've read many replies to questions that are almost the same as mine.  Sorry for this but I really don't grasp the clear answer to the following:
 
Lets say I send in an application for a patent and therefore obtain "patent pending" status.  I then start producing and selling my product.  I end up NOT getting the Patent.  What do I do with the money I made during the two year waiting periond and does this legally stop me from future sales?
 
Second, if I do obtain a patent, but this is clearly an improvement to an already existing patent, does this give me the right to sell my idea without infringement worries?  I'm getting the idea that it only protects me from having someone else sell what I've claimed but I can't sell because mine only improves on  the existing claims that make up the basis of my claims.  If this is true, then why wouldn't everyone just take the risk of selling their item during the two years the application is pending and deal with the consequences (whatever that might be) only if someone sues you?  It seems as if that's the safest block of time to get away with selling your idea whether you get a patent or not.  Thanks for any help you can give.    
 
IP Logged
Isaac
Senior Member
****




   


Posts: 3472
Re: Patent protection clarity please
« Reply #1 on: Jan 1st, 2005, 6:04pm »
Quote Quote Modify Modify

A patent does not give you the right to sell, manufacture,
etc.  It gives you the right to exclude others from selling,
manufacturing or using your invention.  I think applying
this principle answers all of your questions.
 
So you keep your profits regardless of whether or not you
finally obtain the patent, and if your patent is an improvement
on an existing patented idea, you need permission from the
original patent holder to make and sell your product regardless
of whether you obtain a patent.
IP Logged

Isaac
JSonnabend
Moderator
Senior Member
*****




   
Email

Posts: 2251
Re: Patent protection clarity please
« Reply #2 on: Jan 3rd, 2005, 7:21am »
Quote Quote Modify Modify

on Jan 1st, 2005, 6:04pm, Isaac Clark wrote:
if your patent is an improvement on an existing patented idea, you need permission from the original patent holder to make and sell your product regardless of whether you obtain a patent.

I think this part of Isaac's answer assumes some unstated facts.  If your invention is an improvement of an existing, currently enforceable patent, then you may be infringing by selling your improvement.  Part of the answer to that question depends on the exact nature of your improvement.  It is possible that an "improvement" in the general sense lacks one or more claim elements of existing patents, and therefore does not infringe.
 
I suggest you speak to a patent attorney directly (like myself and others here) and don't rely on the general advice you receive from this forum.
 
- Jeff
« Last Edit: Jan 3rd, 2005, 7:21am by JSonnabend » IP Logged

SonnabendLaw
Intellectual Property and Technology Law
Brooklyn, USA
718-832-8810
JSonnabend@SonnabendLaw.com
Richard
Newbie
*




   


Posts: 6
Re: Patent protection clarity please
« Reply #3 on: Jan 10th, 2005, 7:42pm »
Quote Quote Modify Modify

Thanks for your help.  In reply to the improvement issue and talking to a patent attorney:  I've been waiting 10 days from my attorney without reply to the same questions I've put out here.  
 
Jsonnabend's response gives me what little hope I think I have with being able to actually profit from my idea.  There is an enforceable patent that is the basis to my idea.  My improvement, however, is an added feature that is in no way called out in any claim of the original patent holder.  This new feature/claim is what will most likely qualify me for a patent but I can't really produce the item without using the original patent claims as a basis.  Does this mean I can't sell my product without the consent of the original patent holder?  I've actually tried to contact him with no response.    What if I can't ever get a response of the original patent holder?  Do I just sell and wait for him to contact me?  Please help
IP Logged
Isaac
Senior Member
****




   


Posts: 3472
Re: Patent protection clarity please
« Reply #4 on: Jan 10th, 2005, 9:37pm »
Quote Quote Modify Modify

Jeff's correction was only to whether or not your practicing
your improvement would infringe an enforceable patent.  Your
post seemed to suggest that it did, and my answer assumed the
same, but the actuality of infringement of an enforceable
patent is sometimes not easily determined.
 
But the principle that your own patent does not of itself
provide a right for you to practice an invention is certainly
true.
IP Logged

Isaac
Pages: 1 2 3  Reply Reply Send Topic Send Topic Print Print

« Previous topic | Next topic »
Powered by YaBB 1 Gold - SP 1.3.2!
Forum software copyright 2000-2004 Yet another Bulletin Board