Patent Infringement Liability

[Mr.Chicago^esq]

What is the name of your state: IL.

Is there ever liability for a purchaser of materials that may infringe on a patent?

Specifically, a U.S. company buying a food product from an international supplier, which food product may violate a U.S. patent. The food product will be used by the U.S. company to manufacture a finished good, which is not patent protected.

Does this fall under the "use" definition of infringement?

Honestly, I am not even sure that this scenario is possible, the patent rights in the food product have yet to be verified.

 

[divgradcurl]

Is there ever liability for a purchaser of materials that may infringe on a patent?

Specifically, a U.S. company buying a food product from an international supplier, which food product may violate a U.S. patent. The food product will be used by the U.S. company to manufacture a finished good, which is not patent protected.

Well, in general, the purchaser of sproduct is not liable for infringement. However, use of an infringing product is infringing itself, regardless of whether or not the buyer knew it was infringing when they purchased it.

Further, in this specific case, the importation of an infringing product is infringing:

35 U.S.C. 271 Infringement of patent.

(a) Except as otherwise provided in this title, whoever without authority makes, uses, offers to sell, or sells any patented invention, within the United States, or imports into the United States any patented invention during the term of the patent therefor, infringes the patent.

Also, inducing infringing activity is also infringment. See 35 USC 271(b).

Further, if someone is importing an infringing item into the U.S., not only are they potentially liable for patent infringement, but the patent holder has another remedy available to him -- he can file with the ITC and get an order stopping the importation of the product at customs -- this is a very fast-track remedy available to patent holders to stop the importation of infringing goods.

he food product will be used by the U.S. company to manufacture a finished good, which is not patent protected.

I guess I'm not even sure how this is really possible. If "A" is patented, but "A+B" isn't patented, you still couldn't practice "A+B" without practicing "A" -- seems like it would infringe anyway. Maybe there is a specific factual situation where this could happen, but I can't think of one off of the top of my head...

Honestly, I am not even sure that this scenario is possible, the patent rights in the food product have yet to be verified.

Well, if there is no patent, clearly there can be no patent infringement!

 

[Mr.Chicago^esq]

Product Patent v. Production Patent

Divgradcurl,

Thank you for your expedient and informational reply.

Well, if there is no patent, clearly there can be no patent infringement!

I have found out that the Product Patent has expired, but there is still a Production Patent.

If I understand the difference, this would mean that it would not be infringement to make, use, import, etc. the product per se, as long as it was made by a process (legally) different from the one used by the production patent holder?

I guess I'm not even sure how this is really possible. If "A" is patented, but "A+B" isn't patented, you still couldn't practice "A+B" without practicing "A" -- seems like it would infringe anyway. Maybe there is a specific factual situation where this could happen, but I can't think of one off of the top of my head...

In this case, "A" is purchased from the patent holder, and I assume that a limited license is granted along with the purchase, but again, I am still in the process of gathering all of the facts from co-workers.

In the food industry, often patents are not secured, but rather products and market share are protected by formula and process protection through confidentiality/nondisclosure agreements. I would assume this is because many food products, which may be considered unique in the industry, do not rise to the level of uniqueness to qualify for a patent. There are exceptions, of course, as evidenced by this fact scenario. The particular "raw material" food product in question is a chemically altered food substitute, hence warranting and qualifying for patent protection.