Resell Patented Items

[johnsands]

What is the name of your state (only U.S. law)? WA
Is it legal to resell a patented item (i.e. you do not manufacture the item but simply purchase it from the manufacturer who holds the patent on the item, and then sell the item yourself.)

I do not see how this could be illegal since all retail stores obviously sell items which are patented or have patented components.

I am asking because I know of a company which holds a patent on an product which it sells by internet and I believe that I could do a better job of marketing the product and sell it for a higher price than they are currently selling it for, so I wanted to make sure it is legal to do this.

Also, would I have to notify them that I am selling it or anything?What is the name of your state (only U.S. law)?What is the name of your state (only U.S. law)?

 

[FlyingRon]

The doctrine of first sale says that they don't have the ability to exercise control after the first consumer purchase. Of course, they can make it very hard for you to "wholesale" or other wise buy the product if they would like. They also can take action for misuse of their trademarks.

 

[cyjeff]

They may also have prohibitions against resale ... if, for instance, the product is hazardous or dangerous...

 

[The_Saint]

The doctrine of first sale says that they don't have the ability to exercise control after the first consumer purchase. Of course, they can make it very hard for you to "wholesale" or other wise buy the product if they would like. They also can take action for misuse of their trademarks.

Would the First Doctrine apply to this since this would be a business-to-business transaction?

The problems i could forsee are:
1) They sell regional rights to sell the product and your going to be stepping on someones toes
2) They feel their product has a certain image, and you selling it would hurt their image and therefore hurt their trademark.

Why not just ask them? That would be the first thing i would do.

 

[FlyingRon]

No, much as they would LIKE to assert their rights to quash resale of items, they can not.

The worst they can do (besides avoiding misuse of the trademarks) is tighten up their first level distribution channels to keep them from selling to you. They could outright just refuse to sell to you (this is what the contact lens discounters face) or if it's a wholesaler they can make you sign a contract restricting how you will resell the items.

 

[johnsands]

Thanks for the responses. This may not be patent law but, I was also wondering if it would be illegal if I did not mention the name of their company anywhere on my website, and renamed the product, and also since they have engraved their name on the product, if I could paint over the name on the product, and put a different name on it.

 

[cyjeff]

Thanks for the responses. This may not be patent law but, I was also wondering if it would be illegal if I did not mention the name of their company anywhere on my website, and renamed the product, and also since they have engraved their name on the product, if I could paint over the name on the product, and put a different name on it.

Look at this another way.

If you took a copy of the Windows CD, changed the packaging, copied the software onto a blank disc with YOUR name on it and then marketed the product as one you had created... do you think Microsoft would have a case?

Same thing here. It is one thing to be a reseller... it is quite another to poach a patented product.

 

[divgradcurl]

Thanks for the responses. This may not be patent law but, I was also wondering if it would be illegal if I did not mention the name of their company anywhere on my website, and renamed the product, and also since they have engraved their name on the product, if I could paint over the name on the product, and put a different name on it.

Yes, yes, and probably not. You could just paint over the name, and sell the product as a "no-name" product, but putting your own name or mark on the product would potentially create liability for trademark infringement under the concept of "reverse passing-off."

 

[cyjeff]

Yes, yes, and probably not. You could just paint over the name, and sell the product as a "no-name" product, but putting your own name or mark on the product would potentially create liability for trademark infringement under the concept of "reverse passing-off."

If there is a patent on the product, even whiting it out as a no-name product is prohibited.

 

[divgradcurl]

If there is a patent on the product, even whiting it out as a no-name product is prohibited.

Go to a law library, find "Chisum on Patents," and read the section on patent exhaustion, and post back.

 

[cyjeff]

Go to a law library, find "Chisum on Patents," and read the section on patent exhaustion, and post back.

I will.

But are you saying that all I have to do to get around a patented product is to change the packaging?

Really?

Wow, aren't the drug manufacturers going to be excited to hear that they can steal the formulary product mix but as long as they white out the product info, it will be okay?

Wait, you said, it doesn't work that way... they are given a specific license to the product for a specific number of years... completely different.

Or my software example. Wait, you say, that is different too... because different law is involved...

But what if it is just a device that my company can reverse engineer and claim as our own? Happens all the time, right? Wrong. But that, too, has it's own procedure to avoid being sued... just ask Ford...

And we STILL don't know what the product here is. Making a blanket judgement about "it's okay as long as you blot out the patent holder's name" is dangerous.

It is obviously a mixture or formula of some type. There may be more to this patent than meets the eye.

ESPECIALLY since the OP's actions are SPECIFICALLY designed to build a brand against the patent holder.

 

[divgradcurl]

I will.

Good. Maybe you will learn something about patent law.

But are you saying that all I have to do to get around a patented product is to change the packaging?

Really?

No, that is not what I said at all. Reread the questions and responses.

Wow, aren't the drug manufacturers going to be excited to hear that they can steal the formulary product mix but as long as they white out the product info, it will be okay?

Who said anything about stealing anything?

Wait, you said, it doesn't work that way... they are given a specific license to the product for a specific number of years... completely different.

I said nothing about any sort of license.

Or my software example. Wait, you say, that is different too... because different law is involved...

You software example is wrong, but not because the law is different, but because your analogy is flawed. The OP is not taking a patented (or copyrighted) item, duplicating it, and then selling it -- he is buying a patented item, and reselling it. In your analogy, it is the duplication that is the infringing act, and such an act would be infringing under both patent and copyright law. Changing the packaging may be trademark infringement, but it is not necessarily so -- you have to meet the test for passing off.

But what if it is just a device that my company can reverse engineer and claim as our own? Happens all the time, right? Wrong. But that, too, has it's own procedure to avoid being sued... just ask Ford...

Nobody is talking about reverse engineering here.

And we STILL don't know what the product here is. Making a blanket judgement about "it's okay as long as you blot out the patent holder's name" is dangerous.

It's irrelevant. If the OP purchased the patented product through legal channels, the patent owners rights are exhausted with respect to the particular item that the OP purchased. That's what the "first sale" doctrine is all about.

It is obviously a mixture or formula of some type. There may be more to this patent than meets the eye.

Again, irrelevant. The OP is not manufacturing his own version of the patented product, or duplicating the product -- he is purchasing the product, and reselling it. And that is entirely legal under patent law. Whether or not he can sell it under his own brand is a question of trademark law.

ESPECIALLY since the OP's actions are SPECIFICALLY designed to build a brand against the patent holder.

That might be relevant for determining whether or not the OP is guilty of passing off under trademark law, but again, is irrelevant to the question of patent law.