Hollywood, FL asked in Business Law, Intellectual Property and Patents (Intellectual Property) for Florida

Q: Hello!We are planning to start producing a waterproof fitted sheet in China, and we will sell the sheets in USA.

Should we ask China factory if they have a patent for the waterproof technology on the fabric, that they offer for our waterproof sheets? Or not?

Please, advise!

Thank you! Regards!

1 Lawyer Answer
Griffin Klema
Griffin Klema
  • Patents Lawyer
  • Tampa, FL
  • Licensed in Florida

A: That depends. Patent rights are country-specific, and therefore your question involves whether that company has a Chinese patent as well as a US patent. (Patent rights generally protect making using or selling the patented technology.) If the Chinese entity has any patent protection domestically or in China, then arguably its agreement to manufacture and supply you with products that are covered by its patents may give rise to an implied license.

However, there are a lot of pitfalls having products manufactured in China, chief among them being the risk that the very Chinese partners that are producing the sheets will sell knockoffs elsewhere and undercut your prices here in the United States. This often happens through Alibaba and other sources. I strongly recommend investing in what is called an NNN agreement (like an NDA), so that your designs and other information that you disclose to them is protected by that agreement. Once you have decided to have them manufacture, a MSA agreement would also be prudent. These are wise investments in contracts to protect your business against unscrupulous Chinese "partners." I have handled such agreements for clients, and would be pleased to discuss your goals further.

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