Q: Can I resell a product purchased from China that may infringe on a Patent in the US?
I purchased a product from China that is similar to a patented product. I would like to know if I can sell this product legally in the US or not. The product I purchased I currently have in my inventory, and does not make an attempt to be a knock-off or counterfeit to the product that has the patent. It is similar to the patent but it does not match exactly. If I purchased the product and imported it legally, am I able to resell the product?
A:
Selling a product in the U.S. that infringes on an existing U.S. patent can expose you to legal liability, even if the product was legally purchased and imported from another country. The key question is whether the product you imported actually infringes on the patent in question. The fact that the product is similar doesn't necessarily mean it infringes; it would depend on the specific claims of the patent. If the product doesn't fall within the scope of those claims, then it wouldn't infringe.
Before selling the product, it would be prudent to conduct a thorough analysis comparing the product with the patent claims. If there's uncertainty, you might consider seeking a legal opinion on potential infringement. If it's determined that there's a risk of infringement, it would be wise to refrain from selling the product. Proceeding without due diligence can expose you to potential lawsuits and damages.
A:
A patent gives its owner the right to exclude others from making, using, or selling the patented invention. Therefore, if you obtained your product from someone other than an owner or licensee of the patent, you cannot legally sell the product without infringing the patent. This assumes that the patent's claims do, in fact, cover the product in your inventory.
However, if you obtained the product from the patent owner, or you purchased the product from someone who purchased or otherwise legally obtained the product from the patent owner, you may permissibly resale the product under the first sale doctrine (which says that you are allowed to sell patented inventions that you have already purchased from the patent owner.
A:
Good question.
The product that is "similar to a patented product" does not necessarily infringe on the ISSUED CLAIMS of the patent. First, compare the product and the claims side-by-side. Read each claim element (limitation) and try to identify it in the product. If your product is missing one of more limitations of the claim, then it is not infringing. If your product has all the limitations of the claim, then it does infringe. If it has all the limitations of the claim, but has additional elements, then it still infringes. If it infringes, then IMPORTING AND SELLING it in the US will infringe the US patent and you will be in big trouble.
We are a patent law firm. If you have any questions, just email us at abell@bell-iplaw.com.
Adam W. Bell BSc. DPhil. JD.
abell@bell-iplaw.com
Bell IP Law.
Website: www.bell-iplaw.com
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