Salem, MA asked in Patents (Intellectual Property) for Illinois

Q: What are the implications of unknowingly using a sub-component in your design that has violated a patent?

For example, I use a power supply from vendor A in my lighting product. The power supply violates a patent from vendor B. Both Vendor A and myself are unaware of the infringement at the time of purchase. Can vendor B sue me for patent infringement?

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

A: Short answer is yes, you have exposure.

35 USC Section 271a states -- 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 .

Assuming for the minute that the power supply infringes the patent, your supplier is infringing for selling and or making the device. You are infringing for selling the device. Your customers are infringing for using the device.

As a practical matter, a patent owner will often sue the manufacturer but sometimes they sue a major distributor or a user if that is easier than suing an off-shore manufacturer.

Not knowing is not a defense to the charge of infringement. On the other hand knowingly continuing to infringe could subject you to getting the damages increased as a willful infringer.

Frequently the contracts with suppliers will include an indemnity clause to make the supplier liable for any costs to handle a patent infringement suit.

You should consult competent patent litigation counsel to sort out your exposure.

Sorry that I am bringing you bad news.

Kevin E Flynn

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