Patent protection clarity please

clarkla...

A patent does not give you the right to sell, manufacture,
etc.  It gives you the right to exclude others from selling,
manufacturing or using your invention.  I think applying
this principle answers all of your questions.

So you keep your profits regardless of whether or not you
finally obtain the patent, and if your patent is an improvement
on an existing patented idea, you need permission from the
original patent holder to make and sell your product regardless
of whether you obtain a patent.

JSonnab...

Quote

Richard

Thanks for your help.  In reply to the improvement issue and talking to a patent attorney:  I've been waiting 10 days from my attorney without reply to the same questions I've put out here.  

Jsonnabend's response gives me what little hope I think I have with being able to actually profit from my idea.  There is an enforceable patent that is the basis to my idea.  My improvement, however, is an added feature that is in no way called out in any claim of the original patent holder.  This new feature/claim is what will most likely qualify me for a patent but I can't really produce the item without using the original patent claims as a basis.  Does this mean I can't sell my product without the consent of the original patent holder?  I've actually tried to contact him with no response.    What if I can't ever get a response of the original patent holder?  Do I just sell and wait for him to contact me?  Please help

clarkla...

Jeff's correction was only to whether or not your practicing
your improvement would infringe an enforceable patent.  Your
post seemed to suggest that it did, and my answer assumed the
same, but the actuality of infringement of an enforceable
patent is sometimes not easily determined.

But the principle that your own patent does not of itself
provide a right for you to practice an invention is certainly
true.

JSonnab...

Quote

Richard

 I have tried to contact the original patent holder with no reply.  Is it common to sell your item and wait for the patent holder to contact you and then offer a percentage?  I understand that's not the best practice but isn't that what I would be doing, waiting for someone to infringe my improved version?  If I ever do get a hold of him, what would be fair?  What percentage should he get and what exactly is it a percentage of?  Thanks again for all your input.  

I finally did get a response from the lawyer.  It sounds as if I may get around infringement if my product could be designed differently to reduce the commonality of claims, but still offer the same end result.  At least I think that's what he meant.  He starting speaking "lawyer" so it gets a little fuzzy....I do appreciate the extra effort you folks take in getting to the point in plain English.  Thank you.

JSonnab...

Richard, you are absolutely playing with fire by relying on any general advice you get here.  If the lawyer you contacted wasn't able to communicate in plain English like the lawyers here, I strongly suggest you find a different lawyer.  Any one of us here would be happy to speak with you, I'm sure.

As for your current inquiry, it's generally a bad idea to knowingly infringe a patent on the theory the patentee will later contact you.  You may be opening yourself up to increased damages and attorney's fees if the patent holder successfully sues.

- Jeff

joe

did you check the expiry date of that patent?
if it isn't too far it might be worth to wait till then.

Richard

He has 15 or so years left.  I've since thought of a way to design this item without infrindgment to this persons major claims.  It ends up providing the same end result but the design is very different.  I've been told that this may get me around the claims in a way to sell without infrindgment worries.

JSonnab...

I'm not sure what you mean by "major claims", but you need to avoid every claim to avoid infringement.  If you infringe even a single claim, you infringe the patent.