Tempe, AZ asked in Patents (Intellectual Property) for Arizona

Q: Is there a way to use a patented product for my business without it being illegal?

I am looking to create a startup company, but there is a product that is patented and there seems to be no way around it. I am looking into ways to improve what is already out there or even use the product with my own twist in a legal fashion. The product patent is for dissolvable edible pods which looks to have no alternatives for production that can currently get around the original patent. Can you support my review?

2 Lawyer Answers
Peter D. Mlynek
Peter D. Mlynek
  • Patents Lawyer
  • Moorestown, NJ

A: You are going to have to get a patent attorney on board with this.

The good news is that you know about this patent, and can take steps now, before you've invested lots of money into production, marketing, and distribution.

All is not lost, though. Typically, the claims are much narrower than what the patent describes. The patent attorney must interpret the claims in view of the description and the prosecution history.

After the analysis, the attorney will provide you with a written opinion stating that your product or process is not infringing any of the claims of the patent. This is a legal opinion that you put into your drawer and use it as a defense tool during any subsequent litigation, showing that you took steps to wilfully not infringe.

The other advantage is that now, before you tool up, the patent attorney can advise you on how you may change your process or product to not infringe.

I've done many of such opinions in the past. If you wish, send me your contact information.

Stephen E. Zweig
Stephen E. Zweig pro label Lawyers, want to be a Justia Connect Pro too? Learn more ›
  • Patents Lawyer
  • Los Gatos, CA

A: It probably is a good idea to talk to a patent attorney. The claims may not be as comprehensive as you think. Alternatively, the patent prosecution history may show specific gaps in coverage. Other information, such as expiration dates, ownership, and the like, may also be helpful.

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