How to Legally Replicate a Patented Item

[lawadvice01]

Hello,

Is it illegal to build a copy of a patented product, without the intent to sell?
For example: You go to a store and see a hammer you like. You go home and using a couple old hammers you are able to make one like the one you saw in the store for personal use. And again, not mass producing them to sell.

[flyingron]

Yes it is illegal. Neither single quantity copies nor personal use is not an exemption to the patent protection. Research however is. You could build a device or test a process that is patented for "research" but making practical use of it steps over the line. That is, if they find you're building houses with your hammer, you are in trouble. If you're in the lab seeing how well it pounds nails into hard rock maple, then you might be in the research exemption.

[antrc170]

It actually depends on the product and how you make it. Normally under 35 USC 271 it would be illegal to make, use, etc any patented item. However, under Subset G(1) the patent does not extend to any item when it is "materially changed by subsequent process".

To use your hammer example. If the hammer at the store was an all aluminum hammer with a designed head and you went home and made an all wooden hammer with a similiar head, your hammer would not infringe upon the patent because you have materially changed the original product.

Also, think of it like a soda. Every wonder why there are so many that taste substantially similiar? It's because all I have to do is adjust one flavor component to differ my formula from yours. When dealing with a product, all you have to do is change it so that it can perform the same function but it doesn't look exactly like the original, or doesn't use the same construction material.

[lawadvice01]

So the items have to be identical down to what they are made of to infringe?

[flyingron]

No, not quite. "Materially different" doesn't mean it's just made out of a different material. The analogy given was bad. Let's put it this way. If the hammer patent is for a "Device to pound nails into wood" by swinging the hammer shaped thing onto the nail, using lets say a pneumatic ram to "pound nailes into wood" would be a materially different process that wouldn't infringe on the hammer process.

Very few patents on soda. Coke's protection is actually a trade secret.

[lawadvice01]

Maybe a pic of the two items will help.

This is the patented product
http://i247.photobucket.com/albums/g...oper4/pic1.jpg

This is one that was made like it
http://i247.photobucket.com/albums/g...oper4/pic2.jpg

There are obvious differences. Any infringement here?

[flyingron]

You want to give us the patent # ? You can't tell just by looking at something if it violates the claims of the patent. There are tons of things there that aren't protected by patent (fishing poles are old as the hills). I would suspect however, you're infringing if the claim is that this is some sort of way to jig up an ordinary pole to an icefishing rig.

[davidmcbeth3]

You can wait until 17 yrs after the patent was issued...

[KeyWestDan]

The images have been removed.

The materials, etc. are not necessarily elements of infringement. That can ONLY be determined by the claims of the patent, assuming there is an issued patent. The item in question should of course have a patent number placed upon it in manufacture.

Also, there are many products that have patent numbers but that patents are expired. Using those numbers is illegal. Dixie Cups for example, is a big violator of that rule and have been sued.

So, you first have to determine if the item is protected by a valid patent. Then you have to look at the claims.

You are supposed to be able to construct the item based on the claims of the patent and it is completely legal to do so for research purposes.