Why would foreign manufacturers promise that no patents cover their products?
It is always wise to recognize the biases and incentives of a potential business partner. Manufacturers are motivated to sell you products. It should not surprise you when a manufacturer in China claims that no patents cover their products. Perhaps it’s true. But if not, why would they admit it or provide any cautions about the possibility of infringing a US patent?
Need help navigating around patent landmines? US patent attorney Vic Lin has years of patent infringement litigation experience. Explore working with us by contacting vlin@icaplaw.com or calling (949) 223-9623.
How would a China manufacturer know their products do not infringe any US patents?
Anyone can do their patent homework, or hire a patent attorney to do it for them. In fact, foreign companies may even hire non-US patent agents or lawyers to investigate US patents for infringement. Overseas manufacturers who have done their due diligence would probably be willing to share any favorable information that can promote sales of their allegedly safe products.
Would the potential manufacturer be willing to share any information regarding noninfringement? Could they at least provide some guidance on why they feel that no US patents cover their products?
What if a China manufacturer claims they created the product?
Take every representation by a foreign manufacturer with a grain of salt. What exactly does the manufacturer mean when they say that they created the product? Did the manufacturer actually invent the product and make the very first iteration? Or did they simply change the product?
If they merely modified the product, keep in mind that a change in the appearance of the product might not be enough avoid utility patent infringement.
Would the absence of foreign patents make it OK to sell those goods in the US?
Patents are territorial rights. The absence of patent coverage in China for a particular product does not make it OK to sell that product in the US. You need to check whether any US patents would cover that product.
How can buyers reduce the risk of US patent infringement?
So you are thinking of selling certain products in the US. Perhaps, you are an Amazon seller or wish to start an online business. How can you reduce the risk of infringement for the potential products you wish to sell?
Consider a Freedom-To-Operate search. The purpose of an FTO search is to look for relevant US patents that are still enforceable, and then analyze the claims of those patents.
Simpler products that look unique are more likely to be covered by design patents, if at all. Products with innovative functional products might be covered by utility patents. In some cases, a product with both visually and functionally unique features may be covered by both design and utility patents.
Recognize infringement searches of utility patents will be substantially more costly than those for design patents.
Did you check for any patent numbers on leading products?
A quicker way to find out if a product may be patented is to look at the product literature. Does their online listing or website provide any patent numbers?
Remember that design patent numbers start with the letter D, and you can easily find them on Google patents. While you can also look up utility patents online, it may be wise to consult with a US patent attorney to get some guidance on what is covered by the utility patents you found.
Has the China manufacturer ever encountered infringement issues with US patents?
Whom would you rather trust? A manufacturer who is honest about past infringement issues or another who claims they have never had any patent issues? Ask the China manufacturer what they learned from past mistakes and how they reduce risk going forward.
How can a China manufacturer avoid infringing US patents?
Every foreign manufacturer would benefit from reading this article on how to avoid patent infringement. The discussion on claims is particularly relevant for understanding how utility patent infringement works.
Can applying for your own US design patent reduce the risk of infringement?
While applying for your own patents may not help with avoiding utility patent infringement, you might reduce the risk of design patent infringement by getting your own design patent. Design patents are all about visual appearance, so change the look of your product to give yourself a shot at getting a design patent.
Our firm can provide guidance on how to design around the patent claims to avoid or reduce the risk of infringement.
