Are the final stages of a product’s lifecycle protected by patent?

Question

This is a follow up to this question: International patents

Consider the following stages of a product’s lifecycle:

• Manufacture
• Sales
• Import/export
• Use
• End of life/disposal

It is presumed that in a country where a product is protected by a patent, only the patent holder may design, manufacture, sell, and import or export products in accordance with the specifications in the patent.

My question is about the last two stages, use and end of life. And I’d like to offer a specific example:

Consider a form of protective packaging that has a patent in a destination country. The patent has expired in the origin country, so a non-patent holding company has taken up legal manufacturing. A third party company purchases this packaging, and uses it to protect a completely unrelated product during legal export to a country where the manufacturing of the packaging is still protected by patent.

The packaging is not being exported for further use to protect other products. It is disposable, is only used in transit, it’s not listed in any import/export documents, and upon arrival it is end of life and discarded as soon as the item is unboxed.

There is no fraud or intent to deceive, the company using the product simply chose the least expensive domestically available option to protect their expensive item without considering or researching patent laws on the packaging method in the destination country.

Would patent law in the destination country apply to temporary use or possession in this scenario?

If so, to whom would it apply?

Answer 1

In the U.S., and analogous in other places, the law covering what a patent owner has the right to try to stop others from doing -

35 U.S. Code § 271 - Infringement of patent Except as otherwise provided in this title, whoever without authority makes, uses, offers to sell, or sells any patented invention, within the United States or imports into the United States any patented invention during the term of the patent therefor, infringes the patent.

Doing those things without authorization from the patent owner can get you in trouble for direct infringement. There are also a few flavors of potential indirect infringement with somewhat complex rules.

The lifecycle of a product covered by a patent is not technically relevant, just the reading of the claims against the alleged infringement. The nature of the claims might result on the patent being an important business tool for its owner at some or all stages of a product life. Some infringing actions can be specific to the life cycle - the example is offering for sale. That infringes even if you have not even made the product.

The patent can be for a thing (apparatus, device, machine, system) or for a process (method, a series of steps). The thing can be an end user product, an industrial machine bolted to the floor in a factory, and can even be a package for specified or unspecified items.

If it is a process it could be a method of manufacturing, a method of packaging, a method of transporting, or even a method of designing.

Note that exporting is not in the statue. Once you obtain a duly authorized instance of a product, the patent laws will not constrain you from doing most anything with it, including exporting it.

The question has an example involving packaging. I have heard from an inventor with successful patents both on products and packaging that packaging companies are among the most zealous enforcers of their patents.