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I have learnt that "A patent owner has the right to exclude all others from making, using or selling products or services containing the claimed invention."

It is the "using" part I don't understand - when does it apply? For example, let's say a company want to make a new type of camera (a new invention) that uses 35mm film, and Kodak has the patent for 35 mm film. Does the company need to license the use of 35mm film from Kodak?

The film is not part of the new invention (the new invention does not "contain" the patented product), but the film will still be used in the new invention.

The same goes for other supplies - take for example the batteries in the same camera. Would the company need to license the use of them as well (assuming someone has the patent for the type of required batteries).

Is there something I haven't understood here? All help to clarify this is much appreciated.

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2 Answers 2

Yes, all technologies would have to be licensed separately. Even if there's a patent for 35mm film, there's nothing preventing a second patent for "a camera lens that uses 35mm film", the patent doesn't infringe another patent, but a product using such a lens would need permission to use the film too. Products infringe patents.

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Thank you! Just to check that I understand this correctly - That means that every company that wants to create a new gadget must check that any product that will be used with the new gadget (e.g. batteries, headphones, anything that will be used with the new gadget) are not patent protected (or get a permission from the patent holder). –  user2078515 Nov 15 '13 at 15:49
    
@user2078515 well, basically. If there's a patent on film, and it doesn't actually come with film, but it does use 35mm film sprockets which aren't protected by patent it would be fine. i.e. just because the camera is used with film, it doesn't violate the film patent, because that is sold separately, and probably sold by someone else. –  McKay Nov 15 '13 at 21:39
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If the only patent claims related to the film were specifically to the film itself and not to a method of using it or to the film in combination with a camera, then no license would be needed. This assumes the patent owner (or a licensee) is selling the film. In that case whoever buys the film can do what they want with it. There is an implied license to use it given to the buyer of the film - this is called patent exhaustion.

If there are method of use claims or claims with the film in combination with a camera, that is a different story. Right now the Supreme Court says if the patent owner of a "thing" wants to control its downstream use they could retain title and just lease it under a limited license rather than sell. Not at all practical with something like film.

More broadly, a cool patented camera can very well infringe someone's strap patent, lens patent, or the box-it-goes-in patent. But if they buy the strap, lens, box, etc. from whoever owns the patent then they are fine.

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