Maybe. A patent only gives you the right to stop others from making, using or selling the patented technology. However, a patent has nothing to do with whether you can sell a product. Someone may have a patent on a part of your patented technology, and you would need to get that patentee’s permission before selling. For example, if your invention is a new car motor, but someone has a patent to a car in general, you can’t sell a car with the new motor simply because your have a patent on the motor. Of course, the party owning the car patent can sell cars, but not one with your motor. To do that, you may need to trade rights so you both can share the market, assuming your motor is important to the party owning the car patent.
People often refer to the ability to sell your product or service as “freedom to operate.” That’s an in-depth analysis that examines live patents to determine if the product you intend to commercialize infringes anybody else’s patents. Most start-ups do not need an extensive freedom to operate analysis, although there are exceptions. Even if you are early, it still can benefit you if you keep an eye on third-party patents to catch the low-hanging fruit of close patents.
Steven Saunders is an Intellectual Property Attorney at the Boston-based law firm, Nutter. Steven can be reached at ssaunders@nutter.com.
For more information about Steven, See Steven’s Martin Trust Center Biography at: https://entrepreneurship.mit.edu/profile/steven-saunders/
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