Let's have the following hypothetical case:

  • Company develops a product using method 'X' for some testing procedure qualifying it.
  • Company releases product, development is frozen, testing no longer takes place, product sells.
  • Someone raises an infringement claim over method 'X'.

What this case? The product as-is doesn't incorporate method 'X', it was only used in its development process, so technically the infringement doesn't take place at the time the claim is raised.

What if the product had some qualification based on its development and testing process incorporating method 'X'? Could this revoke that qualification? (maybe this is a bit ridiculous to expect, just for completeness)

Of course it may be possible if necessary to implement a different, non-infringing method for testing then, but this is just the same case like any ordinary patent infringement case.

  • 1
    Can you clarify "qualification" ? Is the method done once at design time or is it ongoing during production? – George White May 19 '17 at 17:19
  • @GeorgeWhite Design time. Think of a software product for a trivial example. – Jubatian May 20 '17 at 6:24
  • I found 35 U.S. Code § 271(g) (g)Whoever without authority imports into the United States or offers to sell, sells, or uses within the United States a product which is made by a process patented in the United States shall be liable as an infringer, . . . This talks about a product made by a patent process. I do not know if this would apply to a product whose design was tested by a patented product. – George White May 22 '17 at 2:22
  • It occurred to me I might misunderstand the question. Is the hypothetical use of this patented testing tool, itself, an infringement or was the tool legitimately bought/licensed? – George White May 23 '17 at 18:00
  • @GeorgeWhite I assumed there was no third-party tool used, rather that for example a small firm in some European country developed and used a process without knowing it was patented (maybe even only in the US if it was software). The US law might apply here, the ambiguous part is "made by a patent process" as you mention: the testing itself isn't necessary for the actual production, only for the original design, assisting and qualifying the design itself. – Jubatian May 30 '17 at 5:18

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