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Building something that has a patent and giving it away for free. Patent Infringement?

Hi, I saw a website that provides certain service online and liked it. The thing is that it has a patent already covering the process. The patent describes how this online service works. Already, the idea is bits and pieces of already existing idea with a new spin. I thought about offering the same service, except I am going to let people use it for free. How would I make money, I will sell ad spaces to business that would like to use, but will not charge them for the service. Can I legally do this without being accused of patent violation?

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Attorney answers (3)

Reputation Level 8
You can infringe a US patent by making, using, selling, offering to sell or importing into the US a product covered by the US patent. So, assuming what you would do would be covered by the patent, your use of the process would be an infringement.
1 person marked this answer as good

Reputation Level 18
At the risk of putting too fine a point on the matter, you simply have no idea if one or more patent claims cover the "service" that has captured your attention and which you now want to offer free to the public.

First, "services" are not patentable (only inventions are patentable) so I assume that you're referring to some nifty new process of doing something -- a "process" being, in quite limited circumstances, patentable.

Second, determining whether a patent covers an invention is a very fact intensive question. Many times companies receive patent protection for Invention X but they then offer a product to the marketplace or practice a method that is NOT covered by that patent. Their own product or method does not read on their own claims. It is not reasonable, or proper, due diligence to take a competitor's word on the scope of patent protection that it has on its technology.

Only a patent attorney can provide an opinion as to whether the process that you like is covered by whatever patent you've found. But going down that road is not fruitful. At the end of the day, you need to know if your process will infringe any patent that's out there. You need a "freedom to operate" opinion from a patent attorney -- especially now that you think a patent may cover the process you want to use.

Hire a registered patent attorney ( see < https://oedci.uspto.gov/OEDCI >) and talk through what you want you do and what you know is already out there. Good luck.
1 person marked this answer as good

Reputation Level 8
As others have stated, it may be wise to obtain a freedom-to-operate opinion from a qualified patent attorney. The patent attorney can help determine the scope of the invention and determine if what you are doing "reads on" the claims.

Also, it is a common misconception that one must be involved in selling in order to trigger patent infringement. _Chisum on Patents_, which is a well-regarded treatise in the patent field, states that making *or* using *or* selling a patented invention can constitute patent infringement. In other words, you can use the patented invention and infringe even though there is no sale (or offer for sale).

The freedom-to-operate opinion is a good idea because the patent attorney can tell you -- in an opinion -- whether your improvement has "designed around" the patented invention so as to avoid patent infringement. Opinions are not inexpensive, but a well-reasoned opinion from qualified patent counsel may prove useful in the long-term.

DISCLAIMER: The foregoing is not intended to be legal advice nor does it intend to create, nor does it create, an attorney-client relationship.

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