On Tue, 19 Apr 2011 16:14:49 -0700 (PDT), "***@aol.com"
<***@aol.com> wrote:
|Is a company allowed to make use of another party's patented concept
|before actually getting to the point of licensing it ... ?
Your language choice in the quoted portion of your question is
interesting while confusing. It suggests if one reads statutory
language literally that you hypothesize a per se infringement or at
least contributory infringement. But maybe you assume some kind of
distinction between 'make use of another party's patented concept' and
'uses another party's patent' except that, if so, you do not say how
such any distinction applies to the parties to whom and, in light of
the claims therein, to the patent to which you refer.
35 U.S.C. 271 Infringement of patent.
(a) ... whoever without authority ... uses ...
any patented invention ... during the term
of the patent ... infringes the patent.
(b) Whoever actively induces infringement
of a patent shall be liable as an infringer.
|<what if such use is> at the research and development phase
|before actually getting to the point of licensing it, in good faith?
Patent legislation as construed and applied by the courts
provides for a number of exceptions to or qualifications of sect. 271.
But because the thought and activities that constitute 'research' and
'development' can be varied and extensive, no one would be able to
know from what you say and ask whether any such would apply. This is
especially so because you do not post information that answers the
question, In light of the patent's claims and also of the 'and' and
the unexplained nature and scope of 'involving' as you use those words
in the 'subject' line of this query, what exactly would be the 'use'
you ask about?
Nor for numerous reasons does your apparent 'in good faith'
afterthought provide any analytical help. These include and so may
not be limited to also not explained alternatives such as these - that
you do not post any facts to enable concluding that 'good faith' is
not merely a unilateral self-serving assertion or that the patent
holder or a court if litigation results would agree, that 'good faith'
if present might relate only to the amount of damages or nature of
other relief granted a patent holder in an infringement lawsuit
instead of being a complete defense, and that in any case the apparent
purport of this query rests on a hope that there would not be any
litigated case.
|Thank you in advance ...
Your posting also does not answer en these questions -
Would the user of the patented concept be doing research and
development conditioned on a strictly adhered to decision not to do
the 'development' aspect, at least not to the point of actually
manufacturing and marketing whatever is the device or process for
sale, until that party had negotiated a license or obtained the patent
holder's consent in some manner?
Would the contemplated research and development be done with
the aim of reverse engineering the patented device or product then,
without obtaining a license or other permission from the patent
holder, marketing and trying commercially to exploit the result which
would be more or less functionally the same device or process as the
patented device or process so as to accomplish substantially the same
result even if the patented device or process and the user's
researched and developed device or process differ in name or in form
or in shape or in some other maybe incidental and trivial way?
If the user you have in mind of another party's patented
concept before actually getting to the point of licensing it proposes
to do research and development without the patent holder's knowledge
and cooperation, how likely is it that the occasion for that person to
learn the answers to these sorts of questions will be when called upon
to respond to a 'cease and desist claim or when required to answer an
infringement lawsuit?
It is possible that 'yes' would turn out to be the answer to
your question but presumably you want to assess not merely what is
possible and what instead is probable and preferably near certain.
But very probably ABOVE ALL, especially because you do not
provide information in your posting that answers this question,
either, your question is impossible to evaluate: Assuming you refer to
an actually valid patent, what exactly are all that patent's CLAIMS
that are relevant to the patented concept being used (whether or not
used "in good faith")?