Salt Lake City, UT asked in Intellectual Property and Patents (Intellectual Property) for Utah

Q: how are people able to sell a product even though it has a patent design?

Lot of people are selling different versions of a selfie stick, how are they able to even though there is a patent?

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

A: I do not know what patents cover selfie sticks, but generally when someone says that they have a patent for product, they typically have a patent on only certain kind of a product.

So, for hypothetically, a "selfie stick patent" may claim a selfie stick that attaches the camera or cell phone to the stick with nitrile rubber claws because they found that nitrile rubber works better than any other rubber, and it was unexpected. But someone else make and sell selfie stick with silicone rubber and not infringe the patent.

James L. Arrasmith
James L. Arrasmith pro label Lawyers, want to be a Justia Connect Pro too? Learn more ›

A: When a product like a selfie stick has a patent, it means that the original inventor has exclusive rights to make, use, or sell the invention for a certain period. However, people can sell different versions of a patented product by ensuring their versions do not infringe on the specific claims of the patent. This is often done by modifying the design or function of the product sufficiently to avoid infringement, focusing on aspects that the original patent does not cover.

Additionally, patents are territorial, meaning they only provide protection in the countries where the patent is registered and granted. If a product is patented in one country but not in another, individuals in the country without the patent can legally produce and sell the product. This situation often leads to the availability of similar products in different markets.

Lastly, some sellers may take the risk of selling infringing products, betting on the patent holder not taking legal action or not noticing the infringement. However, this is a risky strategy, as patent holders can sue for infringement, which can result in hefty fines or orders to cease production and sales. Therefore, it's essential for sellers to conduct thorough patent research and seek legal advice if they plan to sell products similar to patented items.

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