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Am I infringing on this patent?

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Sasabune

Junior Member
About 6 months ago, I started selling a similar seat cushion online (Amazon, Ebay, etc.) under my own private labeled brand.
http://www.amazon.com/gp/product/B00AE9V3WQ
There are many competitors as well selling similar seat cushions. At the time it did not have a patent.

Fast forward 6 months and I have been told by an overseas supplier that this seat cushion now has a patent. I did a quick search to find that the biggest seller of these cushions (in the link above) now has in their description “Patented orthopedic foam seat cushion”. In the past it had been described as “patent pending”. I am estimating that he received his patent within the last three months.

I haven’t received any cease and desist letters from this merchant. It seems that none of the the other merchants have stopped selling their cushions either. Though I am using memory foam instead of sponge foam like the patented cushion, I do not want to infringe on his patent if he truly does have one.

My questions are:
1. Should I continue to sell these cushions until I receive notification from the owner holding the patent? I certainly don’t want to infringe, but it will take me at least 3 months to clear out my inventory. What are the risks of continuing to do so?

2. Why hasn’t he already notified all other competitors to cease and desist? Is he just gearing up for lawsuits?

Any help from you patent experts would be greatly appreciated!
 


quincy

Senior Member
About 6 months ago, I started selling a similar seat cushion online (Amazon, Ebay, etc.) under my own private labeled brand.
http://www.amazon.com/gp/product/B00AE9V3WQ
There are many competitors as well selling similar seat cushions. At the time it did not have a patent.

Fast forward 6 months and I have been told by an overseas supplier that this seat cushion now has a patent. I did a quick search to find that the biggest seller of these cushions (in the link above) now has in their description “Patented orthopedic foam seat cushion”. In the past it had been described as “patent pending”. I am estimating that he received his patent within the last three months.

I haven’t received any cease and desist letters from this merchant. It seems that none of the the other merchants have stopped selling their cushions either. Though I am using memory foam instead of sponge foam like the patented cushion, I do not want to infringe on his patent if he truly does have one.

My questions are:
1. Should I continue to sell these cushions until I receive notification from the owner holding the patent? I certainly don’t want to infringe, but it will take me at least 3 months to clear out my inventory. What are the risks of continuing to do so?

2. Why hasn’t he already notified all other competitors to cease and desist? Is he just gearing up for lawsuits?

Any help from you patent experts would be greatly appreciated!
If you think your cushion might be infringing on the patented product, you might want to consider pulling your product from the market until a patent attorney can take a look at your cushions and compare them to the patented product.

The "patent pending" status on an invention is notice to others that an application has been filed with the patent office. Once a patent is issued, the patent holder can use this application publication date as the date from which to obtain royalties from anyone who has infringed on the patented product. See 35 US Code Section 122, 154.

If the patent owner decides to sue (and he might), it is possible that an injunction will be ordered by the court, and it is possible that the patent owner will be awarded damages.

Because you and the others who are marketing similar cushions were aware of the patent application, it could be found by a court that your continued sale of a cushion that infringes on the patent holder's rights is willful infringement, and the patent holder could potentially be awarded three times the actual damage proved, plus reasonable attorney fees.

That said, patent infringement lawsuits carry some risks for a patent holder, and there are defenses available to those who are claimed to infringe.

I recommend you see a patent attorney in your area for a review, advice and direction. Good luck.
 
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Sasabune

Junior Member
Thank you for the insight quincy!

I will be contacting some patent attorneys to decide if I will continue selling this product.
 

quincy

Senior Member
Thank you for the insight quincy!

I will be contacting some patent attorneys to decide if I will continue selling this product.
You're welcome, Sasabune. :)

I think a review of your product by a patent attorney in your area is smart. It could very well be that your cushion does not infringe and that it is found you can continue with your sales without risk of a lawsuit. It can depend on what of the cushion has been granted a patent. But, until you know for sure, it is probably best if you refrain from marketing your cushions.

Good luck.
 
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Sasabune

Junior Member
Would the injunction process typically include some kind of warning, such as a formal cease and desist? Or could he basically file a lawsuit and I would be sued without warning?

And is there any way for me to look up what type of patent he has received?
 

quincy

Senior Member
Would the injunction process typically include some kind of warning, such as a formal cease and desist? Or could he basically file a lawsuit and I would be sued without warning?

And is there any way for me to look up what type of patent he has received?
You could be provided with notice of a pending legal action but a notice is not required. If the patent holder files a lawsuit, however, you will be served with a summons and complaint so the fact that you are being sued will not be a secret. ;)

To search for a patent, all USPTO-issued patents are available online. There is the free USPTO database (http://www.uspto.gov).

You can check Google: http://www.google.com/patents

And then there are patent searches that charge a fee (like lexis-nexis.com and delphion.com).
 

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