Can I use a patented material in my product? 6 Answers as of January 05, 2011

I was wondering can I use a patented material (a special kind of wood) as the material for my product, and then patent my product as an innovation

example: special kind of wood desk

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Handal & Morofsky LLC
Handal & Morofsky LLC | Anthony H. Handal
It is possible that you could obtain a patent on your new product. Whether you can or not would depend on the interactions between the new type of void and the particular product you are making. The answer to this question can be quite complicated and involve many factors. For example, would the results obtained be expected? Is there some suggestion that the new word would not work in the context of your invention? How long is the new material that available? Are there similar applications in the prior art? You would be well advised to seek the counsel of a patent lawyer on these questions.
Answer Applies to: New York
Replied: 1/5/2011
Michael M. Ahmadshahi
Michael M. Ahmadshahi | Michael M. Ahmadshahi, Ph.D., Esq.
Your product can be patented even though it uses a patented technology. For instance, consider the hypothetical example where a transistor radio maybe patentable even though it utilizes transistors which are themselves patented technology. Referring back to your product, when using, selling, or otherwise practicing your product, you must obtain permission, usually in the form of a license from the owner of the patented technology incorporated in your product.
Answer Applies to: California
Replied: 1/4/2011
Fish & Associates, PC
Fish & Associates, PC | Robert D. Fish
Under a legal principle called "exhaustion", you likely escape infringement if you purchase the material from an authorized source. For example, you don't infringe any Everyready patent merely by using an Everyready battery in your clock radio. But if you manufacture the battery yourself, then you would infringe. Its not quite that simple, but that's the gist of it.
Answer Applies to: California
Replied: 1/4/2011
Malhotra Law Firm, PLLC
Malhotra Law Firm, PLLC | Deepak Malhotra
Do a search for "patent exhaustion.". After a completely unrestricted sale of a product, a buyer can usually sell and use that article. It isn't always clear-cut so hire an attorney for help with the analysis.

Also be aware that it is perfectly possible to obtain a patent that builds on other people's patents. Just because you get a patent does not mean you can build the product without infringing on other patents.
Answer Applies to: Washington
Replied: 1/4/2011
DANIEL NESBITT | Hasse & Nesbitt
Yes, it might be. However, from a patentability standpoint, your product must be independently novel and non-obvious over the prior art, which includes the patented material itself. If you are simply replacing regular wood with the patented wood and getting the expected benefits, then probably the invention (your product) would be considered obvious and therefore not patentable. From a commercial standpoint, be sure to purchase the patented material from the owner or licensee thereof, to avoid patent infringement.
Answer Applies to: Ohio
Replied: 1/4/2011
    Young Basile
    Young Basile | Denise Glassmeyer
    Most definitely. As patent attorney specializing in chemistry and materials and the application of new materials in various technologies, I can attest that this is a common scenario. Think TEFLON fry pans. DuPont invented the material but supplied it to various end-users for inclusion in their products.

    Here are some points to remember:

    * Observe and respect the intellectual property rights of your material supplier. This includes Trademark and trade-name usage and well as patent and trade secret matters.
    * When you are seeking to patent your article, discuss the matter with your patent attorney. You may be entitled protection that goes beyond simply calling out the patented product by trade-name in your patent application.
    * Patented inventions must meet the standards of novelty, utility and obviousness. Simply using a new product for an old use may or may not be sufficient to meet these standards. You and your patent attorney can discuss this.

    If you are having difficulty locating a patent attorney in you region or state, please remember that the patent statute is a federal statute and patent attorneys are registered to practice before the United States PTO. Many of us represent clients residing throughout the US and the world.
    Answer Applies to: Michigan
    Replied: 1/4/2011
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