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Topic: Paten Pending selling rights (Read 1163 times) |
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rktkk
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Posts: 5
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Paten Pending selling rights
« on: Jul 3rd, 2004, 9:45pm » |
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I'm going to state a hypothetical situation in which I have have questions. Any help would be greatly appreciated.
Lets say I send in a PPA to obtain "patent pending" status for a year and then I decide to go on and apply for a Formal Patent Application in hopes of a patent.
Within the year the PPA is in effect, I go ahead and produce my item and even start selling them. Shortly after I commit to a FPA I get a call stating that the item I've been selling for over a year is an infringment to an exisiting patent.
Do I have any more rights to go out and make and sell my item if I apply for a PPA or even an FPA or do I have to pay the inventor a percentage or whatever it takes to legally settle the issue?
Do I have any more rights than someone else who goes out and makes and sells the item with no intent on optaining or at least trying to obtain a paten?
Obviously I either didn't know of the other paten or thought that my idea would be considered pattenable if I pay thousands of dollars trying to get my own paten. Does this help me in my case against having to pay anyone fines, etc?? Many thanks!
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Richard Tanzer
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Re: Paten Pending selling rights
« Reply #1 on: Jul 4th, 2004, 8:09am » |
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The fact that you have a patent application, or for that matter a granted patent, on an invention in no way protects you from an infringement charge. You have no more rights to practice someone else’s patent that someone who never applied for a patent.
To use a hypothetical example:
- Allan invents a miner’s hat with an acetylene lamp. Allan receives a patent broadly
claiming a hat with a light source attached.
- While Allan’s patent is still in force, Ben invents a hat with an electric flashlight
attached. Ben receives a patent for a hat with an electrically powered light source attached.
In this example Ben would be infringing Allan’s patent if he made or sold a hat with any light source attached – including his patented flashlight-hat.
Allan would be infringing Ben’s patent if he made or sold a hat with any electrically powered light source – including, for example, a hat with a neon sign.
If you invented (and publicly disclosed) the invention claimed by the other person first, that is a possible defense against infringement.
If your invention is a commercially worthwhile improvement over the earlier-patented invention, then the current patent-holder may be willing to cross license rights for each of you to practice each other’s invention. Most likely however, until you are actually granted a patent, the current-patent holder would rather simply collect a royalty from you. If and when you are actually granted a patent, you might be in a better negotiating position.
Best of luck,
Richard
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rktkk
Newbie
Posts: 5
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Re: Paten Pending selling rights
« Reply #2 on: Jul 4th, 2004, 1:00pm » |
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Thanks Richard. In your senerio it looks as if patens can be given to improvements to another paten. Also I'm surprised to learn that patens can be given to folks even though if they went ahead and sold their idea it could infringe on another paten. What's the point of a paten if you can fall into that trap? Where's the protection? I would like to think that after all the trouble of getting a paten I can at least try to sell and profit off my item without having charges against me at some point.
I have an improvment to an existing paten that I don't see sold in the market. I want to go ahead and sell my version and now I don't know if there is an advantage to getting a paten or not. Looks like I can have infringment charges against me whether I have a paten or not. What's protection do I gain after spending 2 years and 5K in obtaining a paten? I can see getting a PPA to keek molding manufacturers from trying to steal my idea but what's the use thereafter? Please try to make me understand as I'm new to this. From the "outside" looking in at this paten process it doesn't seem make economic sence nor give me full proof protection from others. Thanks!
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Isaac
Senior Member
Posts: 3472
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Re: Paten Pending selling rights
« Reply #3 on: Jul 4th, 2004, 8:01pm » |
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The point to an improvement patent is that the owner of the original invention might be interested in licensing it from you. Maybe the two of you could cross license so that each of you can make the device plus improvement.
Simply put a patent is a right to exclude others from making your invention. It does not give you rights to make or sell the invention.
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Isaac
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rktkk
Newbie
Posts: 5
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Re: Paten Pending selling rights
« Reply #4 on: Jul 5th, 2004, 12:46pm » |
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Thanks for the information. Knowing what I've read the past couple of days let me ask a new question. Let's say I proudly obtain a patent for an improvement to an existing item. From what I know now, this entitles me to a nice certificate of sorts that can be hung by the fireplace with care, not much else. I can't market or sell or profit with the use of this patent because someone else has the patent on the basis of my idea.
I'm sure I'm not the only one in this situation and I'm sure this wouldn't stop everyone from following what was their insperation (even if you find out that someone else thought of it first). Is there a process in place to get a legally binding contract with the other inventor to partner in an effort to sell the new and improved item? If so, what's the medium percentage one might offer? What type of lawyer needs to get involved for this type of contract and how much might that cost?
The first item had a patent issued 4 years ago and I've never seen it on the market. This brings up another question, if the first person decided that his/her idea wasn't going to make money and they defaulted on their maintanence fees does this mean the use of the patent as a basis to mine is up for grabs without fear of infrindgement? I thought I've read somewhere that the defaultee can reinstate the patent if they start making payments again which might make this strategy a little risky.
Bottom line is this. I've been giving up on what I think were good ideas (even seen one or two in the market years after I thought of it) for over ten years now. I finally thought of something that I feel so strongly would be a great seller that I'm trying real hard to hang on this time. Lets assume I will get a patent on an improvent to a base patent. What are my options now if I wanted to sell what I have. Do I have to try to find out who has the real baseline patent (what if the patent I think is most like mine is really an improvement over another patent-do I have to now get both inventors involved)? Sorry for the size of this question. Please help. This forum is great, I wish I used one years ago.
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