Q: What if a patent has been issued, but the product was never developed, and I want to develop it and sell it?
I am asking about US 7185386 B2 (paint brush with interchangeable bristles). I can find this on the market, but I love the idea. I am an actual painter with a marketing background and I feel capable of selling this product. What can I do? Can a patent be transferred? SHould I contact the patent holder?
A:
Step 1 is to ensure that the patent is still in force.
Go to Public PAIR https://portal.uspto.gov/pair/PublicPair Put in the patent number (check the box to switch for patent number rather than patent application). https://portal.uspto.gov/pair/PublicPair
The record shows that this patent expired in April of 2011 for failure to pay a maintenance fee. While the PTO is pretty generous in allowing people to fix an unintentional failure to pay a maintenance fee, the process is given a deeper look if they missed the deadline by more than two years. At this point we are coming up on 7 years so you may want to take the risk that they did not pay this fee intentionally. If they have not put the product on the market by now with a March 2007 patent, you may deem it likely that they are not planning on releasing this product and that is why they chose not to pay the maintenance fee.
You can contact the law firm that handled this patent to confirm that there was no unintentional failure to pay the fee but that may inspire them to pay the fee. (I doubt it but it is hard to know how people will react).
Once a patent lapses, you are free to make and use the invention.
There may be subsequent patents that improved on this idea. Or they may have not brought a product to market as there was an earlier broader patent out there. You may want to look at my slide set on patent searching. http://bit.ly/Patent_Searching
Before investing in building a business, you should consult with a patent attorney to look for any other issues. See Freedom-to-Operate Opinions https://www.flynniplaw.com/services/legal-services/freedom-to-operate/opinions
Additional material can be found in the resources portion of my web site. https://www.flynniplaw.com/resources/flynn-ip-law-links
I hope this helps.
Kevin E Flynn
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