Can I use a patented cosmetic ingredient in my new cosmetic line? 11 Answers as of November 26, 2013

I want to make a new skin care line. There are 8 ingredients I use but 4 have been patented by another cosmetic company. Am I still able to use the patented ingredients? Or does the patent only refer to the way the ingredients are used together?

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DANIEL NESBITT
DANIEL NESBITT | Hasse & Nesbitt
The scope of protection (exclusivity) of a patent is its claims. It looks like you should engage the services of a patent attorney.
Answer Applies to: Ohio
Replied: 11/26/2013
Eminent IP, P.C.
Eminent IP, P.C. | Paul C. Oestreich
The answer to your question depends on whether the patents at issue are valid and infringed. The infringement portion of the analysis requires an detailed analysis of the patent(s) covering the four ingredients "patented by another cosmetic company." More particularly, claims in each of the patents must be compared with your 8 ingredient cosmetic line. If in fact, the other cosmetic company has an open-ended claim on any one of your ingredients, then there may be patent infringement. That you have more unpatented ingredients will not avoid infringement. The validity portion of the analysis may indicate whether the patents in question are enforceable. There are many reasons why a patent may be unenforceable. For example, if the maintenance fees have not been paid, a patent is not enforceable. It may also be the case that the claims allowed were unnecessarily broad and consequently read on the prior art, thereby being invalid. The patent may also be defective for one or more of a number of technical requirements for a valid patent. As you might surmise the analysis of the claims is a critical starting point to making an infringement determination. But, it is also possible that infringed claims are invalid because of prior art or other failed requirements of a patent. Accordingly, you would be well-advised to seek a clearance or noninfringement opinion of counsel before using "a patented cosmetic ingredient" in your cosmetic line, where such an opinion is based on a complete factual scenario and a thorough infringement analysis including prosecution file history where necessary. Such an infringement analysis may also dictate the need for a validity analysis, if there are claims that appear to be infringed.
Answer Applies to: Utah
Replied: 11/26/2013
Michael M. Ahmadshahi
Michael M. Ahmadshahi | Michael M. Ahmadshahi, Ph.D., Esq.
You should be free to do what you want, including using the patented ingredients in making your own skin care line, once you purchase them. There are some rare situations where the patent owner puts conditions on the sale of its patented product, such as using them in making a competing product. The sales receipt should specify those conditions if any. However, if you're making a big investment to make your skin care product, it might be wise to spend a little more money to have an attorney review the sales contract.
Answer Applies to: California
Replied: 11/22/2013
Microtechnology Law & Analysis | Daniel Flamm
This is a complex question. From the manner in which you pose it, I can see that have insufficient experience and understand of patents to reach a decision on your own. Here is one of those cases where you should engage an experienced patent attorney (assuming your revenue/potential revenue justifies proceeding with your proposed product line).
Answer Applies to: California
Replied: 11/22/2013
Law Office of Kirk Buhler
Law Office of Kirk Buhler | Kirk A Buhler
If you purchase the patented products then you can generally use the product as as you want because you paid for the intellectual property. If you make the product you would probably be infringing. The patent could either be a process patent for how the product is made or a product patent that covers the combination of the ingredients (regardless of how they are combined). In general infringement is determined by reading the claims and comparing your product with the claims. Without knowing the four patents and your product, accurately answering your question can't be made.
Answer Applies to: California
Replied: 11/22/2013
    Webb IP Law Group
    Webb IP Law Group | Jason P Webb
    without looking at things in detail, the answer is unknown. Go talk with an attorney and go over the details together under attorney-client confidentiality.
    Answer Applies to: Utah
    Replied: 11/26/2013
    Banner & Witcoff, Ltd. | Ernie Linek
    U.S. Patent Law says that once a patent has been granted, the patent owner has the right to exclude others from making, using, selling, offering for sale, or importing into the U.S. the patented invention during the lifetime of the patent (up to 20 years from filing). However, under the Common Law doctrine of "patent exhaustion" once the patent owner receives compensation for his or her invention through sale of the patented item, the purpose of patent law is fulfilled with respect to that item. In other words, once the patent owner has been paid for the invention, the patent owner's rights to exclude others are "exhausted" and the patent law no longer provides a legal basis for restraining the use and enjoyment of the thing sold. Thus, if you purchase the patented ingredients from their respective patent owners you cannot properly be prevented from using or reselling that patented item in your product.
    Answer Applies to: Massachusetts
    Replied: 11/22/2013
    Brown & Michaels PC | Michael F. Brown
    Am I still able to use the patented ingredients? If you buy the ingredients from the patentee, you would be free to use them, assuming someone else did not have a patent on a cosmetic comprising the combination of the ingredients. Or does the patent only refer to the way the ingredients are used together? There is no way to answer that question in the abstract. You have to look at the claims in the patent. You can find some basic information on how to read patent claims on our website at: http://www.bpmlegal.com/howtopat5.html Patent claim interpretation is not easy, though, and more often than not more research is needed before one can tell exactly what a patent covers. If you think you might infringe, you should get a patent attorney to advise you on the specifics of that particular patent's claims vs. your particular cosmetic product.
    Answer Applies to: New York
    Replied: 11/22/2013
    Tran & Associates | Bao Tran
    As long as I purchased the ingredient, you can use as you wish. For your new product, you may want to do a provisional application. PowerPatent has a patent software called ProvisionalBuilder(R) that automatically searches for similar ideas. As you enter the title and summary, the software runs an automatic search to suggest similar patents you should look at to see how similar patents are written. You should get patent application as soon as you can to prevent others from copying you. This is important as we move into the First to File era. Software costs $99 so it i very inexpensive yet guides you to prepare a high quality patent application that one year later you can turn to a lawyer to convert into a utility application for you. A feature summary is at http://www.powerpatent.com/prwelcome The software helps you organize information, and through your summary description, brings back sample patents in the same field for you to use as examples.
    Answer Applies to: California
    Replied: 11/22/2013
    Sebby Law Office
    Sebby Law Office | Jayne Sebby
    Yes, you can use the patented items assuming you can get access to them.
    Answer Applies to: Nebraska
    Replied: 11/22/2013
    David M. Driscoll | David M. Driscoll
    Depends on what the patents cover.
    Answer Applies to: Massachusetts
    Replied: 11/26/2013
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