Denver, CO asked in Patents (Intellectual Property) and Trademark for Colorado

Q: I'm starting outdoor business. I'm ordering knives, military backpacks, etc, from vendors in China. Patent issues??

I'm worried about current patents and if I'm putting myself in jeopardy by offering these products?

1 Lawyer Answer
Kevin E. Flynn
Kevin E. Flynn
  • Patents Lawyer
  • Pittsboro, NC

A: It is possible that by selling products made off-shore that you may be infringing a US patent claim that is from an unexpired US patent. A US patent can be used to prohibit someone from making, using, selling, or offering to sell a product that is covered by one or more patent claims of an unexpired patent.

While it is possible to do some preliminary patent searching using tips from this slide set -- or to hire a patent attorney to conduct Freedom-to-Operate searches and clearance work see -- as a practical matter, you cannot spend all your time searching to check on each of hundreds of items.

To the extent that you are buying a good that is very similar to a well-known brand, you can look at the packaging for the well-known brand and that packaging should include a list of patents that cover the product. That will give you specific patents to check.

You can also check for patents assigned to a particular company if they only really make one line of products to ensure that you know what patent rights they have.

You can have your purchase contracts with your suppliers have them warrant that they are not aware of any patents in the United States which would impinge on your ability to make and use the products they are selling to you. You can get it in the contract that you can return all product for a full refund if you get a cease and desist letter from a United States patent holder (without having to go through full litigation to resolve whether their patent reads on you). You can seek to have the supplier indemnify you for patent claims and the cost of mounting a defense for patent litigation that arises based on your selling products made by the supplier.

The supplier may not agree to these terms. If so, you may want to limit your dealings to suppliers that do. You will need to assess whether you could collect on an indemnity clause given that the supplier has no facilities here in the US.

As long as you are selling a broad mix of products these risks should be small. To the extent that much of your sales volume is apt to be on just a few products, you may want to do more work to reduce your risk that you are infringing a patent.

If you found this answer helpful, you may want to look at my answers to other questions about patent law are available at the bottom of my profile page at

Kevin E Flynn

1 user found this answer helpful

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