Grand Blanc, MI asked in Intellectual Property and Patents (Intellectual Property) for Michigan

Q: If I own the patent to a product and I produce the product can someone sell the product without my permission?

2 Lawyer Answers
Peter D. Mlynek
Peter D. Mlynek
Answered
  • Patents Lawyer
  • Moorestown, NJ

A: If you make a product, and you sell it to, for example, a wholesaler, then the wholesaler will be able to sell it someone else without your permission. There are ways of preventing the wholesaler from selling it further without your permission, but that is unusual.

If your question is about someone copying and selling your product, then no, no-one can make it or sell it without your permission.That is the basic idea behind why patents exist.

Kevin E. Flynn
Kevin E. Flynn
PREMIUM
Answered
  • Patents Lawyer
  • Chapel Hill, NC

A: If you have a patent and you think that someone is selling product covered by the claims of the patent, then you should consult with a patent attorney.

You need to ensure that your patent has not expired and that all the maintenance fees have been paid to keep the patent alive.

Your patent attorney will need to compare the required elements of your claim (the nouns, verbs, relationships, and sometimes the adjectives and adverbs) with the product that you think infringes your patent claims. There is an all elements rule so the accused product needs to have every required element of one of your patent claims in order to be infringing. Selling the same type of product with the same features is not enough if the product is not within the scope of your claims.

Technically, no one should make, use, sell, or offer to sell a product that infringes a claim of your patent. However, people do what they are not supposed to do so someone may be selling an infringing product. You may need to contact them to get them to stop or pay you for the right to continue. If they won't listen, you may need to sue them.

The people with the accused product may have come to the conclusion that your patent is invalid as the examiner did not consider relevant prior art. Thus, one outcome from this process may be that you have to defend your patent from an invalidity challenge.

This was a high level overview. Details will need to come from a patent attorney that has studied your patent and the accused product. I hope this helps.

Kevin E Flynn

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