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[dbu8554]

I want to reproduce a product that has been in production for about 20 years commercially.

This product is not made in the USA and from what I can tell not sold here either.

It is sold and made in Australia, I contacted the owner about getting this product in the USA because I could use it and he had no interested in setting up shop up here in the states.

The price is also about five to six times higher then what it needs to be, but that's not the point.

I cant buy the product and no one else can that I know of.

When I go into stores there are many of the same product from different companies I know they are not all infringing on each others patent just wondering how would I go about producing this product myself without getting into trouble.

I realize I may catch some flak and thats okay I do not want to break the law or infringe his patent but if some time limit has passed and I can also produce this product then I figure why not.

Thanks alot

[JimIvey]

One thing you'll have to get used to is that you can't do anything without risking infringing someone's patent.  Before anyone completely freaks out at that thought, note that it's been that way for a long time and we've all been just fine with that.  The risk isn't as big as many think.

If the product has been sold for 20 years or so (even if outside the US), I'd say that the risk that someone holds a patent that is currently in force and that covers some aspect of that product is very small.  If some such patent does exist, you'd have a good chance of proving the patent's invalidity by showing it's public availability for so long.  If you "update" the product in some way, your risk goes up.  How much it goes up depends on the "non-obviousness" of your updates.

Regards.

[DogDayPM 9er9er9er]

One thing you'll have to get used to is that you can't do anything without risking infringing someone's patent.  Before anyone completely freaks out at that thought, note that it's been that way for a long time and we've all been just fine with that.  The risk isn't as big as many think.

If the product has been sold for 20 years or so (even if outside the US), I'd say that the risk that someone holds a patent that is currently in force and that covers some aspect of that product is very small.  If some such patent does exist, you'd have a good chance of proving the patent's invalidity by showing it's public availability for so long.  If you "update" the product in some way, your risk goes up.  How much it goes up depends on the "non-obviousness" of your updates.

Regards.

I'll add a caveat relating to the underlined portion of Jim's response, the caveat being kind of the flip side of his point that if you copy-but-improve the product then you run the risk that your improvements may be the subject of someone's newer (not expired) patent.

When doing right to practice reviews I occasionally have business people say, "we've clearly got right to practice because so-and-so's been selling that product for 20 years".  And I ask, "When you say 'that product', what product do you mean, exactly?"  "Brand X Widget", they reply.  So I ask, "Has Brand X Widget been the same for all 20 years?  Or has the Widget been improved or modified from time to time?".  It can be pretty tough to find the answer to this question. 

So the upshot becomes, with regard to patent law*, you can copy a product that's been publicly known for 20 years.  But you need to know if the premise - that the thing you're copying today is the same as what was known from 20 years ago - is both correct and provable. 

*Trade dress, copyright are other considerations for certain types of products.

[dbu8554]

I did do some research and it seems there have been updates from time to time, so from what I get from what you guys said is I can infringe on it and there may not be much that he can do or will do, but if I make improvements or he has been making improvements its becomes trickier because, my improvements I cannot patent since he owns it and by him updating his its still an active patent I am guessing?

I am having a friend ship me the product and I will research the flaws and drawbacks if any then line up manufacturing(will be easy simple product) at that point would it be time to pay an attorney and find out if I can produce this product as I intend without getting sued?

I know giving out law advice is tricky for lawyers due to them being sued over giving free advice so its ok if you guys are uncomfortable answering but, I do appreciate your answers so far.

[JimIvey]

That's not quite right.  If you do something that's been done for more than 20 years and you do it exactly that way, the odds are very slim that you'll have any patent infringement liability because patents expire 20 years from their filing date, generally (older ones in the US expire 17 years from the date of issue -- they all expire pretty soon).

Now, it's possible that others have come along in the intervening 20 years and have patented improvements on the 20-year-old product.  Those patents could still be in force.  If you inadvertently make the same improvement(s), you could infringe those patents and be at some risk for patent infringement liability.

If you make your own non-obvious improvements on the product, you can get your own patent on those improvements.  Note: non-obvious in view of all known improvements to date, not just non-obvious in view of the 20-year-old product by itself.

Regards.

[dbu8554]

Thanks, how would I go about finding if someone else has a patent on the product(doubt it) so I dont infringe on that, and as far as changing it If I cant improve it, will making it out of different materials work? Anyways thanks for your help so far.

[JimIvey]

You can conduct a search for patents that cover the product.  No matter how much you'll search, you'll never completely eliminate the risk that some new patent will spring up or that you've missed one or two.  I'm sorry to say that no business venture is without risk. 

The good news is that, if you inadvertently infringe someone's patent, they'll tell you about it.  Unless they don't notice.

Regards.