Fort Belvoir, VA asked in Intellectual Property, Patents (Intellectual Property) and Copyright for Virginia

Q: how can multiple companies sell sewing tape measures without infringing on a patent?

Multiple companies like Singer, Dritz and less well known companies sell sewing tape measures. How do they escape infringing on patents? Further, how can multiple companies sell retractable tape measures without infringing?

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

A: There are a few options for how multiple companies sell a product when there is a patent for that product.

1) The patent has expired at the en of its normal term or early for failure to pay a maintenance fee. Once the patent is no longer in effect, companies are free to create a generic product.

2) The companies took a license to a product. This is fairly common with computer equipment where the patent becomes necessary to comply with the standards and then everyone needs to have access to that patent to continue to offer products in compliance with the standard.

3) The companies found that the claims in the patent required some quirk that they could design around. So they offer the same funtionality but do not include this quirk. A patent attorney can help a company design around a product. See https://www.flynniplaw.com/services/legal-services/freedom-to-operate/design-around-guidance .

4) The companies did some research and came to the conclusion that the patent claims are too broad and read on the prior art or should be deemed an obvious recombination of teachings in the prior art. They may feel that the owner of the patent knows that the patent claims are likely to be deemed invalid in court or they are just comfortable that they could prove to a court that the patent claims are invalid. If the claims are invalid, then one cannot be held liable for infringing the claims.

5) Someone started making a product that was arguably infringing of the issued patent. Other companies saw that no response came from the patent owner and they were emboldened to produce their own products that fall within the scope of the patent claims. They may feel that the chances are low that the patent owner would sue them if the patent owner has not sued earlier infringing products. This is not without risk but they may deem the level of risk to be acceptable.

6) There are other less common reasons why companies may make the same type of product as is covered by a patent but these examples are sufficient to give you a general answer.

I have not reviewed the patents or any products that might fall within the scope of the patent claims but am providing you a general answer to help you understand the operation of the patent process in the market.

I hope this helps.

Kevin E Flynn

Peter D. Mlynek agrees with this answer

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