Asked in Patents (Intellectual Property) for Georgia

Q: Can I still make and sell food products if the technology to make the product is patented?

I am interested in making a chip (snack food) that is pressure popped but I believe the technology is patented. I found a manufacturer abroad for the machinery I would require.

The patent states: "The present innovations generally relate to the manufacture of food products, and more particularly, are directed to multiple-press, multiple-expansion apparatus and methods for making puffed food products from any edible source in the form of crackers, cakes, wafers, or chips of any desired shape, thickness, crispiness and taste."

Does this mean that I can not use this machinery or process?

1 Lawyer Answer
Peter D. Mlynek
Peter D. Mlynek
  • Patents Lawyer
  • Moorestown, NJ

A: This is a very common question. A couple of points:

(1) What the patent covers and does not cover is defined by the claims. Those are the numbered paragraphs at the end of the patent.

The paragraph that you've copied sounds like it was under the heading Field of Invention, at the very beginning of the description. That paragraph is overly broad that covers much more than simply what is in the claims.

(2) You need to assure that you are not infringing on this patent (or other patents), when you use the machinery. You need to get a patent attorney to provide you with guidance.

(3) The good news is that if the machinery manufacturer has been selling the machine in the US to other snack manufacturers, that this patent issue has come up during past sales of the machine. Typically, in order to advance the sales, the machine manufacturer would have already done some patent study on that patent to show prospects like yourself that there would be no infringement if the snack manufacturer uses their machine. Ask the sales rep for a legal opinion or some sort of a memorandum on this subject. A document from the machine manufacturer may be sufficient for business purposes or it may not be, but if it is not, at least it will give a head start for your patent attorney to provide you with an opinion.

(4) You should protect yourself by adding an indemnity clause into the contract for the sale of the machine. This would mean that the machine manufacturer will step into your shoes if there is ever litigation that you are infringing the patent when using the machine.

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