Can You Replicate an Abandoned Patent?

You’ve made the decision to develop a product that is already available on the market. As you delve into researching the existing product, you discover that it was once protected by a patent, but that patent has now expired. So, what exactly should you do next?

The burning question is:

Can you produce and sell the same product covered by an abandoned or expired patent?

The straightforward answer is YES. Once a patent expires or is abandoned, the invention described within it becomes accessible to the public. The patent owner’s creation is now dedicated to the public, free for all to use.

However, this is not the end of the story. The more nuanced response is MAYBE. It’s important to determine whether you have unearthed all the patents safeguarding the product. If even a single unexpired patent exists, it leaves you vulnerable to liability. Your task is to identify all patents that offer protection to the product you intend to replicate.

How to Unearth All Patents for the Patented Product?

In our hypothetical scenario, you have managed to locate one expired patent. Yet, the crucial question remains: have you found all the patents, including any unexpired ones, that protect the product? The patent owner might possess other unexpired patents providing coverage. If there is a single unexpired patent covering the product, you must locate it. By failing to do so, you would risk infringing on that unexpired patent.

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Let’s delve a bit deeper into this matter.

Most likely, you purchased the product you are attempting to imitate and inspected it to find the patent number. The patent owner may have marked the product with the patent number—an act known as patent marking. Alternatively, you perused the product’s webpage and stumbled upon the patent number. At the time the patent was initially associated with the product or webpage, it had not yet expired. However, over time, the patent’s validity expired. Fortunately for you, you have found a single patent related to the product, and it has expired.

Nonetheless, in certain cases, the patent owner may possess additional patents that were not indicated on the product or listed on its webpage. It is your responsibility to ensure that you have identified all the patents held by the manufacturer. Once you have done so, you need to confirm that either all the patents have expired or that you have devised a workaround to avoid patent infringement.

Remember, even if you sidestep liability for the expired patent, failure to locate other unexpired patents could still render you liable for patent infringement.

If you find yourself asking why the patent owner doesn’t list all the patents on the product, it’s important to understand that patent marking is not a mandatory requirement. The patent owner has the choice to label the product with the patent number or refrain from doing so. Though adhering to the patent marking statute provides certain benefits, it is not obligatory.

For instance, method patents do not require marking on the product. Additionally, the patent owner may have obtained additional patents after creating the product mold and simply never updated it due to cost constraints.

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To ensure that you avoid liability for patent infringement, it is imperative to locate all patents protecting the product.

How to Discover Other Patents Owned by the Manufacturer for a Product?

At this point, our focus is solely on patents owned by the manufacturer of the product. Later on, we will discuss patents owned by other individuals or companies.

To locate all patents associated with a product held by the manufacturer, you need to conduct a comprehensive search using the company name or the inventors’ names (also known as an assignee search).

For conducting such a broad search, visit and enter either the name of the company or the inventors. Browse through the search results carefully, ensuring that you don’t miss any patents related to the product. Reviewing the list of patents is a manual process, but it is crucial if you want to avoid potential patent infringement.

It is of utmost importance to be vigilant regarding patent infringement, especially when attempting to replicate someone else’s product. Conducting a thorough search for patents associated with a product is an essential step when engaging in such product replication. To learn more about conducting a search for patents on a product, you can refer to my resource: How to Check If a Product Has Already Been Patented?

How to Discover Other Patents Held by Third Parties Covering Your Product?

Up till now, our focus has been on patents owned by the manufacturer of the product you aim to replicate. However, you may also be liable for patent infringement related to patents held by other individuals. Although this may not be as critical as our previous discussion, it could still pose a concern, especially if you are making a substantial investment. Prior to committing to an investment, it is crucial to ensure that you are not infringing on someone else’s patent. To mitigate this risk, conducting a freedom-to-operate search becomes necessary.

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A freedom-to-operate search goes beyond the scope of the search we conducted earlier. It is a comprehensive search aimed at identifying patents that cover the unique features of your product. Conducting a freedom-to-operate search is a complex task compared to a simple novelty search or the assignee and inventor searches we discussed earlier.