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I am the owner of a similar cosmetic and I want to know if in my packaging I must add same patent number, or if I need to ask for the permission of the patent owner to do that. The product is not same but is pretty similar.
I need to know the next steps with this as we are manufacturers of our products for more than 13 years and selling our products outside the United States. We are now going to sell in the US market and we want to be prepared.
The patent number is this one WO 2002067887A3
What should you do in relation to this patent?
First, talk to a lawyer.
Then, you should obtain a copy of the patent, and determine whether (1) the patent is still in force; and (2) whether your product infringes the claims of the patents. If the answer to both is yes, then you would be liable for damages if you used, import, manufactured or sold your product in the country of that patent.
You mentioned US 5972360. This appears to still be in force, and will be until 3 September 2018. The independent claims are:
1. A self-tanning product in the form of a towelette comprising a towel impregnated with a self-tanning composition.
7. A self-tanning product in the form of a towel impregnated with a self-tanning composition containing an effective amount of dihydroxyacetone and ethoxydiglycol and enclosed in a liquid-proof packet which can readily be opened for one step application to the body and/or face.
If you make, sell, import, or use either of these in the US without a licence, you will be infringing the patent. Assuming the patent is valid, you might therefore be liable for damages for your acts.
You could therefore look to obtain a licence, or just wait until 3 September 2018 when the patent expires.
Should I add the same patent number to my packaging?
Absolutely not. The patent number there is added to put others on notice that the products sold are covered by the patent, so that the patent owner can maximise their damages from infringement. It would be very much an own goal to put the patent number of your own packaging.
Why do different manufacturers mark their products with the same patent?
They probably subcontract the manufacturing to the patent owner, or are licensees of the patent owner.
In addition to Maca's excellent answer, please be advised that there may be other patents relevant to your product. For instance, WO2002067887 (which isn't a granted patent itself) is associated with two granted patents: EP1363597B1 and US7198780B2. These patents cite other patents, so it would be prudent to review those too. As Maca advised, a patent lawyer would be the best source to guide you through a freedom-to-operat evaluation.
