How can I use something that is patented by someone else?

If there is something you want to use which is protected by someone else’s patent, you have several legal options. First, you can talk to the owner of the patent and try to license their invention, offering to pay some amount of money to be entitled to certain legal use of the patented invention. Alternatively, you could try to buy all rights to the patent itself, having the patent assigned to you. You would then have the legal right to make, use and sell the invention.

Alternatively, you can conduct a careful review of the patent itself, and the claims in particular, to see if there is a way that you can make something equivalent to the invention but which is missing at least one of the claim’s elements. Something only infringes a patent if it has every element of a patent’s claim. While this may not sound above-the-level, as long as the changes you make to differentiate your product are not something minor, it is not only legal but actually encouraged by the patent laws (because the underlying purpose of the patent laws is the encouragement of innovation).

Finally, there is something known as the “research exemption” or “safe harbor exemption.” What this means is that, for a limited period of time prior to the expiration of a patent, you are allowed to conduct research and testing which might otherwise infringe the patent if the purpose of that research is to gain regulatory approval related to the manufacture, use or distribution of drugs.  For example, if the patent for a drug is shortly going to expire, you can begin preparing a generic version of that drug for FDA approval so that it can be sold shortly after the patent expires.

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Posted in: FAQ-PATENTS