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I have a kitchen and bath website. I was going to sell bidets on it, that I would buy from overseas, but now I'm worried about patents on the designs, since they are all similar. I did a patent search, and there are thousands of patents. How am I supposed to know what is allowed without spending thousands and thousands of dollars?

I mean I see several different companies selling bidets, but I also see numerous patents. What am I supposed to do? Last thing I want to do is get sued, but I also can't afford thousands of dollars for a lawyer.

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Are you going to manufacture the product? If you are just re-selling it, would the original manufacturer not be responsible for whatever licensing/patent legalities are involved? –  Ron J. Feb 13 '13 at 11:32
    
@Ron J. While it may be possible to shift some responsibility to the original seller by indmenification in a contract, 35 U.S.C. 271 is clear that offering to sell, selling or importing a patented product constitutes direct infringement. –  Yorick Feb 13 '13 at 14:06
    
Yes, they will be manufacturing, and as Yorck stated, I can't see them getting the blame, especially being in China, where I would be in the country with the business with the patent. –  user3226 Feb 19 '13 at 3:11

1 Answer 1

You are correct that you should think about consulting an attorney. From a business perspective, you might consider a cost-benefit analysis.

One possibility is proceeding without any concern of the patents. In a worst-case scenario, the product is seized at the border and your business is stopped.

The other extreme is that you conclusively address all patent-related concerns at great expense.

The likely solution is somewhere in the middle, determined by your projected profits. The greater the profit, the more your analysis might point towards fully addressing the legal issues.

You can obtain more affordable counsel in this case if you are working only with design patents and have already identified the patents in question, having done a search. (A patent search, especially for design patents, is surprisingly affordable). A small firm or solo patent attorney will most likely be more affordable than a larger firm. Ask your colleagues for a referral, or look up some attorneys and ask for referrals for someone who might be interested in this work. Discuss cost up front and mention you expect to pay less for an infringement analysis of a design patent than for a utility patent. The attorney will probably be willing to provide a variety of levels of service for different costs and should be very clear what he will and will not do for various fees.

Another option is to pose this question to your supplier. The manufacturer often knows about competitors and key patents. They may even have conducted a freedom to operate search or analyzed some key patents. Good luck.

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Thanks, great points. Here's a question, one step further. What if I found a unique product that's being sold by a popular brand in the US, and I found the Chinese manufacturer of the product. If they sell it to me, could I get in trouble? I mean wouldn't they have some agreement with the manufacturer to not sell it to anyone else? –  user3226 Feb 19 '13 at 6:22
    
It really depends. The manufacturer may be making it under license with an exclusivity provision. On the other hand, if the manufacturer has full rights, then it might be ok. The reality is likely somewhere in between. Things are changing rapidly in China, and you can't make the same assumptions as before. It would be interesting to approach the manufacturer and see what they say, and maybe just as importantly, what they omit. –  Yorick Feb 19 '13 at 14:48

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