Q: Can I apply this technology for my project without the inventors knowledge? (Dual torque vectoring patent )

A: Is it possible for you to use a technology undetected? Possibly. This becomes less and less likely if your product becomes a commercial success as you will less likely to fly under their radar. I do not know enough about your product to consider how apparent your use of the technology will be.

The real question is whether your use of the technology is an infringement of their patent rights. Do they have an issued patent or a published application? Do they have a patent in the United States or in some country where you do not plan to make or sell products?

One does not get patent rights to the concept that shows up in the title or even the abstract of the patent. One gets specific rights to exclude others from practicing what is set out in the claims of the patent. If you provide the same type of benefits but do not have all the required elements of any of the claims, then you are not infringing the patent and should be ok.

You can see information on this topic in Freedom to Operate Opinions on my web site. http://www.flynniplaw.com/services/legal-services/freedom-to-operate/opinions

Sometimes it is possible to tweak what you are doing to get outside of narrow claims. http://www.flynniplaw.com/services/legal-services/freedom-to-operate/design-around-guidance.

Sometimes the patent office grants patent claims that are broader than they should have because they did not know of all the relevant prior art. There are ways to get the patent reexamined so that the claims get tossed out or narrowed to an appropriate scope. Alternatively, you can move forward with your product with a good faith belief that the patent claims are invalid but you may have to prove that in court if you are sued.

Keep in mind that if you go undetected for a number of years but are indeed infringing a patent, that the suit for damages can extend back to capture damages from before the suit was filed. If you are aware of a patent and willfully infringe the patent, then a judge can increase the damages that you owe by a factor of up to 3x. One of the many things a patent owner can seek is an injunction to have you stop your infringing activity rather than allowing you to continue while paying a royalty. There are lots of factors that go into the availability of various forms of remedies. I am just introducing these concepts here to point out that infringing a patent is not a good business plan.

Encouraging innovation by having a special system to reward inventors was considered so important by the founding fathers that this is one of a short list of items listed in the Constitution for Congress to set up. I do not encourage trampling on the rights of others. You need to have some professional help to sort out the outer bounds of their patent rights and find you a way to avoid infringing their legitimate rights.

Good luck

Kevin E Flynn

A: I would not spend substantial effort or money on this project before answering a few questions:

- Are you sure your project will be infringing on these inventors patent. Look at their patent, read the claims and determine whether your project will be infringing on their patent.

- Just because you are not infringing on their patent does not mean that you are not infringing on other patents. To make sure that you are not opening yourself or your company to a potential lawsuit, I highly recommend working with an attorney to make sure you are not infringing on others’ intellectual property before investing money and energy into this project

- If a search shows that you will be infringing on someone else’s rights, you can work with a patent attorney to design around existing patents. Often times, a simple look at older expired patents which have fallen in the public domain must be your best bet.

- If you think that your project will be using all their technology, I would recommend looking at their prior art and see if there isn’t any older expired patent that you can use for your project instead of the newer one.

If you have any other questions, feel free to contact us at 949-429-0212 or visit our page:

http://kgulick.com