Patent - manufacturing materials and instructions

[soccer00kid]

What is the name of your state? Missouri

I was wondering. If I own a patent on something, can someone sell a "kit" that includes everything you need to make the thing I have patented with instructions on how to make it.

Does the law only say that someone can't manufacture and sell something patented? Or does it also include the instructions on producing the item patented?

 

[divgradcurl]

I was wondering. If I own a patent on something, can someone sell a "kit" that includes everything you need to make the thing I have patented with instructions on how to make it.

It depends. 35 USC 271(c) provides that:

"Whoever offers to sell or sells within the United States or imports into the United States a component of a patented machine, manufacture, combination, or composition, or a material or apparatus for use in practicing a patented process, constituting a material part of the invention, knowing the same to be especially made or especially adapted for use in an infringement of such patent, and not a staple article or commodity of commerce suitable for substantial noninfringing use, shall be liable as a contributory infringer."

So, if the kit contains more than just "staple articles or commodities of commerce" -- i.e., more than just generic, off the shelf parts -- the kit seller can be liable for contributory infringement.

The problem with contributory infringement is that you need to have direct infringement first. Here, what you would need is someone who bought the kit, then built and\or practiced your invention. That person who bought the kit would then be directly infringing on your patent -- you could sue them for infringement, then join the makers of the kit and sue them for contributory infringement.

But, just offering to sell the kit alone -- as long as nobody buys it -- would not be infringement. However, as soon as someone bought the kit, there would be infringement, and the kit maker would then become liable for contributory infringement.

Does the law only say that someone can't manufacture and sell something patented?

In addition to the above, 35 USC 271(a) states:

"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."

Or does it also include the instructions on producing the item patented?

In principle, the patent itself -- which is a public record -- is supposed to include enough information so that one "skilled in the art" would be able to practice your invention without "undue experimentation." Selling the instructions themselves should, in principle at least, be no more infringing than just handing out copies of the patent. So its not the instructions that are infringing -- its the parts in the kit that are infringing.

 

[soccer00kid]

I just want to clear something up...

If that's the case, my patented invention is made out of stuff that someone can buy at a hardware store and a pet store. I didn't invent anything that someone couldn't make by going and buying the parts themselves. I wouldn't be able to go after the hardware stores though. Is it just because someone has put them into a "kit"? If someone doesnt buy the kit, but goes to the hardware store and the pet store and buys the individual components and makes it then, whats the difference?

 

[divgradcurl]

If that's the case, my patented invention is made out of stuff that someone can buy at a hardware store and a pet store. I didn't invent anything that someone couldn't make by going and buying the parts themselves. I wouldn't be able to go after the hardware stores though. Is it just because someone has put them into a "kit"? If someone doesnt buy the kit, but goes to the hardware store and the pet store and buys the individual components and makes it then, whats the difference?

I guess I don't really understand your question. Look at the quote from 35 USC 271(a) below -- if someone "makes" your invention, or if someone "uses" your invention without your permission, its infringement. Period.

Of course, the difficulty would be trying to enforce the patent against people who just went down to the hardware store, bought parts, and put them together themselves...

Perhaps if you could rephrase your question it would be easier to understand.

 

[soccer00kid]

Hehe, okay I'll rephrase it and give examples that might help explain it.

If I have a patent on a device that is comprised of 2 plastic cones, a wire attached to those cones and a plastic cup shaped object. The purpose of the object is to grasp cylindrical objects so that they can be hoisted into the air, the heavier the object, the tighter the grip becomes.

Now, I own the patent. The items I use to make the device are Aquarium Sealant, caulking, a metal pin, and some rope or wire that is tied to the pin. I don't "manufacture" the sealant, caulking, pins or rope, I just buy them in a store already made.

If someone sells a "kit" that contains aquarium sealant, caulking, a metal pin, and rope and includes a copy of instructions on how to make my device is that legal? They haven't manufactured anything really, just put everything someone needs to make my device in a package and is selling them unassembled.

If that is illegal, would that same person making those "kits" be allowed to stop making kits, but make copies of my device manufacturing instructions available for free, and sell individually aquarium sealant, caulking, metal pins and rope? If that's not illegal, would it be illegal for them to sell all of those things to the same person if they also request a copy of the instructions on how to make my device?

I'm not so much worried about the person buying the kit as I am the person trying to sell the kit, or the things needed to make my device.

Does that make it more clear? I'm not really sure how to explain it any better.

 

[HomeGuru]

Hehe, okay I'll rephrase it and give examples that might help explain it.

If I have a patent on a device that is comprised of 2 plastic cones, a wire attached to those cones and a plastic cup shaped object.

**A: I always wondered who invented that bra that Madonna wore on the Like A Virgin video..

 

[divgradcurl]

This post is much clearer.

If someone sells a "kit" that contains aquarium sealant, caulking, a metal pin, and rope and includes a copy of instructions on how to make my device is that legal? They haven't manufactured anything really, just put everything someone needs to make my device in a package and is selling them unassembled.

There really isn't a clear-cut answer to this question. 35 USC 271(c) pretty much says that if the pieces of the kit are "staple articles or commodities of commerce," then that section wouldn't apply. BUT -- and this is another one of those big buts -- there may be caselaw out there that further refines what exactly is a "kit" and what isn't, and what exactly is a staple and what isn't. At first glance, it doesn't appear that the invention as you described would fit under 35 USC 271(c), but you would need to have someone do some more research and analysis to be sure.

If that is illegal, would that same person making those "kits" be allowed to stop making kits, but make copies of my device manufacturing instructions available for free, and sell individually aquarium sealant, caulking, metal pins and rope?

Again, this depends on a few different facts. If your patent gives enough information to build the device as you describe it, then no, selling the instructions would be essentially the same as merely handing out copies of the patent, whcih is certainly NOT illegal in any way, shape or form.

However -- if someone were doing this, then it is possible that, the limitations of 35 USC 271(c) notwithstanding, that this person would be liable for direct infringement under 35 USC 271(b):

"Whoever actively induces infringement of a patent shall be liable as an infringer"

This is actually better than contributory liability, because in order to show contributory liability, you have to have direct liability first. If you could show that someone is "actively inducing" infringement -- and what you describe certainly would suggest that it is a possibility -- then you could go after the "inducer" for direct infringement, and leave out any end-users.

If that's not illegal, would it be illegal for them to sell all of those things to the same person if they also request a copy of the instructions on how to make my device?

See above. Might be inducement.

Based on this information, inducement might be your best "thoery" to consider if you have someone you want to go after. Your next step is to talk with an attorney who has some experience in patent matters to figure out how you want to go forward.

 

[edgarinventor]

Go see my site, it's free!

Censored By The Politically Correct

 

[Just Blue]

I've answered a lot of such questions in eastlondoninventorsclub.com, so I ended up collecting a few articles, to cut a long story short:

Go see my web page, no"kits" there, sorry, but browse trough it, 29 pages long and counting, and if that's not enough, post a question on the east london's site, to either me, Edgar, or anyone else there.

You are violating the TOS of this forum by advertising and by posting to dead threads! Remove your ad's .

 

[edgarinventor]

You are violating the TOS of this forum by advertising and by posting to dead threads! Remove your ad's .

I'll do more than that, I'll quit answering to any question, AND leave you well alone!

Reincarnation gave Mankind the slavery & starvation-justifying, social Apartheid called Caste Society that says Metal Workers are "Unclean", still keep so many in the dark, while they feed "holy" animals.

Oh, and by the way, according to that belief, you have to be REAL sinful to be reincarnated into a...

Woman!

No wonder Hitler believed in that!

Hum... what's the Karma to be borne an Auschwitz-massacred Jew?

Frank Zappa said it all on "Party Girl"