Will Patent Give My Business the Right to Produce?
Having a patent does not necessarily give you the right to produce something. It is important to understand what a patent protects you from and what it doesn’t protect you against. Patents are designed to give you the right to exclude others from making, using, or selling your product. However, a patent does not necessarily guarantee you the right to make your own product if it breaks other laws. Although having a patent is usually enough for you to produce something without any legal hiccups, there are a few important exceptions to look out for:
“The right to exclude” also applies to other patent owners
You may run into trouble if you successfully obtain a patent that infringes on someone else’s patent. Many times, inventors obtain a patent that is either (a) an improvement or (b) addition to an already patented product. For example, if someone receives patent “A” for making a cup and you receive patent “B” for making the exact cup with a lid, you just added to patent “A.” In order for you to produce patent B, you have to infringe on patent A’s product by making the cup first. The United States Patent and Trademark Office (USPTO) merely excludes others from making patent “A”, and because patent “B” is not exactly the same, the USPTO will usually approve it. Nonetheless, the owner of patent “A” still has legal recourse against you, the owner of patent “B”, for infringement. Then it is up to the court system to decide if you committed infringement, regardless of your own patent.
However, the outcome is not always bleak; often times having an “infringing” patent can benefit both you and the original patent owner. If you improve or add to someone’s patent to make it more valuable and marketable, this can be a good business opportunity. Generally, you can become licensed or purchase the rights to use the original patent. This way, you can generate additional revenue without the risk of expensive legal consequences. Other times, the original patent owner may decide not to take any action against you. However, it is better to take preventative measures and do your research. Check to see if someone has a “parent” patent that you are building on. If there is, it is usually a good idea to get in touch with him first to get approval or make arrangements. Otherwise, you may find yourself in a litigation mess down the road.
A patent does not mean unlimited rights against all laws
Having a patent does not necessarily let you produce anything if it violates any other law. The USPTO is not the Supreme Court; it is not the final say that your patent protects you against all the laws of the land. If you have a patent on a transportation vehicle and you sell it in a state that requires all vehicles to be licensed, your patent will not protect you. Furthermore, you cannot sell or produce your patented product if it violates antitrust laws. You should also consider whether or not selling your patented product violates any of your business contracts. For instance, if you signed a contract with another party stating you will only sell a limited quantity of patent B during a certain time, you must still honor those terms. Even though the USPTO approves of your patent, that patent does not necessarily protect you in all courts. Do your homework and make sure you are in compliance with all local, state and federal laws.
Why you should still consider the benefits of a patent
Although having a patent does not guarantee production protection, obtaining a patent still has many benefits. Depending on your business goals, you are usually better off getting a patent. Having a patent usually gives you temporary monopoly on a product, which allows you to reap the rewards of your inventiveness. Also, there is nothing prohibiting someone else from making something without a patent unless it is infringing on your patent. In other words, if you don’t have a patent, anyone can steal your product to produce and sell it. Even worse, someone can steal your idea and file a patent first, barring you from producing your own product! On the other hand, if you have a patent, you have legal recourse if someone copies your product without consent. You can also license your product or allow others to purchase the right to produce or sell your product. This allows you to generate additional revenue and expand your market through other distributors.
A good rule of thumb: It’s usually a good idea to get a patent - just be vigilant of obstacles you may face after you obtain it.