Q: Am I infringing on a patent?
I sell puck holders and someone has alerted me they have a patent. Their design is different from the one I sell. Plus, I don't physically make the holders, I purchase them from a different company and add paint/glitter to it.
The patent holder sent a DMCA takedown notice to my web host, but have not sent me a cease and desist. Can they sue me for selling these? Since I purchase the item in question, I only make money off of what I add to it.
A: I do not know whether the puck that you modify and resell infringes their patent. I do not know whether their patent is valid or expired.
However, to answer one of your questions -- Under 35 USC Section 271 (a)
(a) Except as otherwise provided in this title, whoever without authority makes, uses, offers to sell, or sells any patented invention, within the United States or imports into the United States any patented invention during the term of the patent therefor, infringes the patent.
Thus, it is no defense that you were not the original manufacturer.
I hope this helps.
Kevin E Flynn
Darrin A. Auito agrees with this answer
A: I recommend contacting a patent attorney with litigation experience.
FYI - Sect. 271. Infringement of patent … "whoever without authority makes, uses OR SELLS any patented invention, within the United States during the term of the patent therefor, infringes the patent."
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