# Can you assemble a patented item for your own use? **URL:** \ **Category:** Factual Questions\ **Created:** [July 14, 2011, 7:51am UTC](https://boards.straightdope.com/t/can-you-assemble-a-patented-item-for-your-own-use/588990 "2011-07-14T07:51:10Z")\ **Posts on this page:** 10\ **Page:** 2
**Author:** ![Acsenray](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/acsenray/32/4519_2.png) [@Acsenray](https://boards.straightdope.com/u/Acsenray)\ **Post date:** [July 15, 2011, 8:53pm UTC](https://boards.straightdope.com/t/can-you-assemble-a-patented-item-for-your-own-use/588990/21 "2011-07-15T20:53:47Z")
> [@md2000](#): > > It’s about as silly as the idea of violating copyright if you play your radio where others can hear it in a place of business. I think you know that just playing your personal radio that others can hear by happenstance isn’t infringing. There’s a point at which it becomes part of the service you’re offering–a public performance. Only then is it infringing if you don’t get a license. ---
**Author:** ![ftg](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/ftg/32/2801_2.png) [@ftg](https://boards.straightdope.com/u/ftg)\ **Post date:** [July 15, 2011, 8:57pm UTC](https://boards.straightdope.com/t/can-you-assemble-a-patented-item-for-your-own-use/588990/22 "2011-07-15T20:57:56Z")
> [@ENugent](#): > > Do you have authority for this assertion? I will admit that I have not researched it recently, but I don’t think it’s true. Wasn’t there a university case (I want to say Duke, but I’m not sure) a few years ago that addressed this exact issue and found that the university needed to get a license? If [this](http://dukechronicle.com/article/scotus-rejects-duke-case) is the case you are thinking of, note an important distinction. The Duke folk were _using_ devices covered by the former prof’s patents. That is distinct from _studying_ the devices themselves for the purpose of coming up with their own version. (Which has nothing to do with the SCOTUS decision which basically gutted the 170 year-old research exemption for _using_ patented devices.) ---
**Author:** ![Acsenray](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/acsenray/32/4519_2.png) [@Acsenray](https://boards.straightdope.com/u/Acsenray)\ **Post date:** [July 15, 2011, 9:04pm UTC](https://boards.straightdope.com/t/can-you-assemble-a-patented-item-for-your-own-use/588990/23 "2011-07-15T21:04:16Z")
The Copyright Act has tried very hard to strike a reasonable balance in 17 U.S.C. §110: > [@](#): > > **§110. Limitations on exclusive rights: Exemption of certain performances and displays** > > notwithstanding the provisions of section 106, the following are not infringements of copyright: > > … > > (5) > > - (a) except as provided in subparagraph (b), communication of a transmission embodying a performance or display of a work by the public reception of the transmission **on a single receiving apparatus of a kind commonly used in private homes** , unless– > – (i) a direct charge is made to see or hear the transmission; or > – (ii) the transmission thus received is further transmitted to the public; > - (b) communication by an establishment of a transmission or retransmission embodying a performance or display of a nondramatic musical work **intended to be received by the general public** , originated by a radio or television broadcast station licensed as such by the federal communications commission, or, if an audiovisual transmission, by a cable system or satellite carrier, if– > – (i) in the case of an establishment other than a food service or drinking establishment, either the establishment in which the communication occurs has less than 2,000 gross square feet of space (excluding space used for customer parking and for no other purpose), or the establishment in which the communication occurs has 2,000 or more gross square feet of space (excluding space used for customer parking and for no other purpose) and-- (i) if the performance is by audio means only, the performance is communicated by means of a total of not more than 6 loudspeakers, of which not more than 4 loudspeakers are located in any 1 room or adjoining outdoor space; or (ii) if the performance or display is by audiovisual means, any visual portion of the performance or display is communicated by means of a total of not more than 4 audiovisual devices, of which not more than 1 audiovisual device is located in any 1 room, and no such audiovisual device has a diagonal screen size greater than 55 inches, and any audio portion of the performance or display is communicated by means of a total of not more than 6 loudspeakers, of which not more than 4 loudspeakers are located in any 1 room or adjoining outdoor space; > – (ii) in the case of a food service or drinking establishment, either the establishment in which the communication occurs has less than 3,750 gross square feet of space (excluding space used for customer parking and for no other purpose), or the establishment in which the communication occurs has 3,750 gross square feet of space or more (excluding space used for customer parking and for no other purpose) and-- (i) if the performance is by audio means only, the performance is communicated by means of a total of not more than 6 loudspeakers, of which not more than 4 loudspeakers are located in any 1 room or adjoining outdoor space; or (ii) if the performance or display is by audiovisual means, any visual portion of the performance or display is communicated by means of a total of not more than 4 audiovisual devices, of which not more than one audiovisual device is located in any 1 room, and no such audiovisual device has a diagonal screen size greater than 55 inches, and any audio portion of the performance or display is communicated by means of a total of not more than 6 loudspeakers, of which not more than 4 loudspeakers are located in any 1 room or adjoining outdoor space; > – (iii) no direct charge is made to see or hear the transmission or retransmission; > – (iv) the transmission or retransmission is not further transmitted beyond the establishment where it is received; and > – (v) the transmission or retransmission is licensed by the copyright owner of the work so publicly performed or displayed ---
**Author:** ![CalMeacham](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/calmeacham/32/35_2.png) [@CalMeacham](https://boards.straightdope.com/u/CalMeacham)\ **Post date:** [July 15, 2011, 9:23pm UTC](https://boards.straightdope.com/t/can-you-assemble-a-patented-item-for-your-own-use/588990/24 "2011-07-15T21:23:06Z")
> [@](#): > > I thought you weren’t allowed to patent inventions that are “obvious”? I’d say preparing an extract of a leaf is pretty obvious, so I don’t see how that could be patented. Supposedly not, but it’s amnazing what people try to get away with. I wrote an article a couple of years ago about how a couple of guys were granted US patent #5,443,036 on August 22, 1995 – **Method of Exercising a Cat** It was a patent on using a laser pointer to play with a cat. I’m amazed it was granted, because a.) it’s extremely obvious; b.) It doesn’t involve anything that hadn’t been previously invented or used; and c.) the idea had already been published before they even applied for the patent. Betcha didn’t know you’ve been violating a patent. Actually, the patent lapsed. U.S. Patent Law now requires a couple of intermediate payments to the Patent Office during the lifetime of the patent, and they didn’t keep up the payments. Undoubtedly part of the reason is that no one was paying them any royalties, which has to be because 1.) it’s hard to detect violations of the patent; and 2.) Hardly anybody knew about the patent in the first place. I’ve talked to patent lawyers about this, and I’ve been told that the patent probably wouldn’t stand up to a court challenge. But that didn’t stop the guys from spending thousands on the patent in the first place. Or the (p[ossibly very understaffed and frustrated) Patent Office from granting it. ---
**Author:** ![ENugent](https://avatars.discourse-cdn.com/v4/letter/e/4af34b/32.png) [@ENugent](https://boards.straightdope.com/u/ENugent)\ **Post date:** [July 15, 2011, 9:26pm UTC](https://boards.straightdope.com/t/can-you-assemble-a-patented-item-for-your-own-use/588990/25 "2011-07-15T21:26:24Z")
> [@ftg](#): > > If [this](http://dukechronicle.com/article/scotus-rejects-duke-case) is the case you are thinking of, note an important distinction. The Duke folk were _using_ devices covered by the former prof’s patents. That is distinct from _studying_ the devices themselves for the purpose of coming up with their own version. Yeah, [that’s the one](http://scholar.google.com/scholar_case?q=duke+v.+madey&hl=en&as_sdt=2,48&as_vis=1&case=13577625967649928741&scilh=0). Of course, it also said > [@](#): > > In short, regardless of whether a particular institution or entity is engaged in an endeavor for commercial gain, so long as the act is in furtherance of the alleged infringer’s legitimate business and is not **solely for amusement, to satisfy idle curiosity, or for strictly philosophical inquiry** , the act does not qualify for the very narrow and strictly limited experimental use defense. Moreover, the profit or non-profit status of the user is not determinative. The bolded text represents the only reasons you may _use_ a patented invention without infringing under the experimental use exception. I am unaware of any case law that distinguishes between _making_ and _using_ in this context, though - are you? Or are you suggesting that there is a different design-around exception from the experimental use exception? (As I understand it, there is no problem with _buying_ the patented product and then experimenting on it, as the first sale doctrine would prevent any further damages in the absence of any license agreement attached to the sale.) ---
**Author:** ![Lust4Life](https://avatars.discourse-cdn.com/v4/letter/l/ecc23a/32.png) [@Lust4Life](https://boards.straightdope.com/u/Lust4Life)\ **Post date:** [July 16, 2011, 6:22pm UTC](https://boards.straightdope.com/t/can-you-assemble-a-patented-item-for-your-own-use/588990/26 "2011-07-16T18:22:35Z")
What if you accidently duplicated a formula for something and sold the product under an entirely different name with no intention of using the original as a selling point? I’m thinking that by experimenting; I develop a cola that tastes nice to me and start selling it as Lustola, completely unaware that the ingredients are those used in Pepsi/Coke and in the same proportions. And as these recipes are secret I wouldn’t know what I’d done. ---
**Author:** ![Napier](https://avatars.discourse-cdn.com/v4/letter/n/ce73a5/32.png) [@Napier](https://boards.straightdope.com/u/Napier)\ **Post date:** [July 16, 2011, 7:36pm UTC](https://boards.straightdope.com/t/can-you-assemble-a-patented-item-for-your-own-use/588990/27 "2011-07-16T19:36:15Z")
To be clear, you can often do some of what is written into a patent. What you cannot do without the owner’s permission is to do anything written in any of the claims. Speaking of the US at least, patents broadly consist of two main parts, teachings and claims. They represent an exchange. The inventor gives teachings, often including background information, descriptions and drawings of the invention, notes on the preferred embodiments or best known versions of the invention, and the like. The inventor has to fork over the good stuff here. In exchange, the inventor gets to define one or more claim that acts as a fence around what he wants to protect. The claims are numbered, and each is written as a single sentence, and often they refer to earlier claims (for example “the device of Claim 4 in which the handle is aluminum”). Practicing anything written as a claim is infringing the patent, and the patent gives the inventor the right to sue you for damages and to force you to stop. The whole point is to encourage the industrial arts by trading a 20 year monopoly for the disclosure of useful technology that might otherwise have been kept secret. Congress has the power to encourage the industrial arts in this way because of a specific line in SEction 8 of the Constitution. As a practical matter, it is harder to enforce a patent claim that defines something people could do for themselves, as in the OP, and easier to enforce a claim the practicing of which cannot be kept a secret. So, if you have some sort of process for doing something, and somebody can use your process in their basement, you will have a hard time finding out about it. But if you patent a certain device and they sell the device, all you have to do is find one of the devices they sold (or buy one yourself). Thus “process claims” are often harder to enforce than “product claims”. ---
**Author:** ![ENugent](https://avatars.discourse-cdn.com/v4/letter/e/4af34b/32.png) [@ENugent](https://boards.straightdope.com/u/ENugent)\ **Post date:** [July 16, 2011, 8:07pm UTC](https://boards.straightdope.com/t/can-you-assemble-a-patented-item-for-your-own-use/588990/28 "2011-07-16T20:07:37Z")
> [@Lust4Life](#): > > What if you accidently duplicated a formula for something and sold the product under an entirely different name with no intention of using the original as a selling point? > > I’m thinking that by experimenting; I develop a cola that tastes nice to me and start selling it as Lustola, completely unaware that the ingredients are those used in Pepsi/Coke and in the same proportions. > > And as these recipes are secret I wouldn’t know what I’d done. Well, those formulas are trade secrets, not patented, so that is fine as long as you didn’t acquire the trade secret improperly. For patented products, the patent is published, so you wouldn’t have the “recipes are secret” excuse. But if you infringe a patent unwittingly, you are still liable for damages (which the patent holder may or may not bother to enforce, depending on the situation, of course). ---
**Author:** ![Acsenray](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/acsenray/32/4519_2.png) [@Acsenray](https://boards.straightdope.com/u/Acsenray)\ **Post date:** [July 16, 2011, 8:12pm UTC](https://boards.straightdope.com/t/can-you-assemble-a-patented-item-for-your-own-use/588990/29 "2011-07-16T20:12:05Z")
> [@Lust4Life](#): > > What if you accidently duplicated a formula for something and sold the product under an entirely different name with no intention of using the original as a selling point? > > I’m thinking that by experimenting; I develop a cola that tastes nice to me and start selling it as Lustola, completely unaware that the ingredients are those used in Pepsi/Coke and in the same proportions. > > And as these recipes are secret I wouldn’t know what I’d done. Coke and Pepsi aren’t protected by patents, only trademarks and trade secrets. People have already figured out how to duplicate their formulas and there would be no problem so long as – 1. They didn’t actually steal the formula from Coke and 2. They don’t use Coke’s trademarks on their products This American Life did a whole show on Coke and they interviewed a Coke official who basically admitted that the value of Coke is not its “secret” formula but rather the name, logos, symbols, slogans and other trademarks that they own. ---
**Author:** ![asterion](https://avatars.discourse-cdn.com/v4/letter/a/4da419/32.png) [@asterion](https://boards.straightdope.com/u/asterion)\ **Post date:** [July 17, 2011, 2:46am UTC](https://boards.straightdope.com/t/can-you-assemble-a-patented-item-for-your-own-use/588990/30 "2011-07-17T02:46:19Z")
> [@Napier](#): > > To be clear, you can often do some of what is written into a patent. What you cannot do without the owner’s permission is to do anything written in any of the claims. > > Speaking of the US at least, patents broadly consist of two main parts, teachings and claims. They represent an exchange. The inventor gives teachings, often including background information, descriptions and drawings of the invention, notes on the preferred embodiments or best known versions of the invention, and the like. The inventor has to fork over the good stuff here. In exchange, the inventor gets to define one or more claim that acts as a fence around what he wants to protect. The claims are numbered, and each is written as a single sentence, and often they refer to earlier claims (for example “the device of Claim 4 in which the handle is aluminum”). I use chemistry patents fairly often in my work. Some procedures are better than others, to the point where some worked exactly as written (or could be modified to work) and some were so hard to duplicate it was just a waste of time. As these are generally pharmaceutical company patents, what I’m looking for tends to be in the description and not the claims, as generally what is claimed is the class of molecules and possibly a key synthetic step. I can think of only one time I had to go to Legal, as a key step we were looking at was covered under patent. (We ended up not doing the chemistry, but not for that reason.) When I was in school I could probably get away with doing anything that was in the claims under the research exemption. I doubt it would be anywhere near that easy in industry, although the patent holder would have to A. Find out about it and B. Do something about it. [Previous page](https://boards.straightdope.com/t/can-you-assemble-a-patented-item-for-your-own-use/588990.md?page=1)