legal to copy/sell an unpatented product?

Not seeking specific legal advice, just curious about how the business world/free market works, and whether, in the absence of a patent, “anything goes.”

Suppose Person A makes/sells a widget. Person A holds no patent on his widget.

Further suppose that Person B copies the design and starts making/selling virtually identical widgets at a lower price.

No logos/emblems/markings are involved, so there’s no copywright/trademark infringement. And with no patent, there’s no patent infringement.

Has Person B broken any laws at all, or is this exactly how the free market is supposed to work (“build a better/cheaper mousetrap…”)?

No law has been broken in this case. You seem surprised. Does this somehow offend you?

There are various ways to protect the design of widgets, including patents, trade marks and copyright. However, in the absence of those protections, you can do what you like.

There’s one other tort rule that might come into play: passing off. You can say, “These widgets are just as good as Person A’s”, or even “These widgets are superior to Person A’s.” However, you cannot claim, “These widgets were made by Person A,” or “These widgets have been endorsed by Person A,” if in fact they were not.

I agree with smiling bandit*
In fact, if I understand the laws properly, you can legally copy and sell a patented product. The patent gives the patentee the right to sue you if you manufacture things without their permission, but doesn’t mean the government will come after you for doing so. If the patentee takes no action, it’s their problem.
certainly, though, no laws are broken if you copy something that’s not patented, and in that case the original inventor has no legal recourse – he can’t sue with an expectation of winning.
lots of inventors don’t patent, because that requires disclosure of the device. That’s one of the points of the patent system – to encourage inventors by giving them incentive to invent, but also to record and make public the mechanism/formula/process so that, after the patent period, it becomes free to all.

  • this may never happen again.

Yes, to quote from our company’s patent attorney “There are no patent police.”

One caveat. If you steal the manufacturing process, say by bribing an employee of company A, you are certainly subject to civil and possibly legal penalties. But if you simply reverse engineer it, you should be in the clear.

My father worked for a company that copied a product during the war that had been made only in Germany. The process was never patented and the company set up operation in a separate building that only a handful of people were ever allowed into. They kept their monopoly on the product (diamond tipped dental drills) for about 30 years when high speed drilling equipment rendered diamond tipped drills unnecessary (possibly dangerous, even).

Hi I know this is a bit of an old conversation however I’m interested in a bit deeper scenario. One that is probably a lot more common today with Chinese manufacturing.

Suppose Person A makes/sells an electronic gadget. Person A files for patent on his gadget on date X, however the patent process takes years ! 2-3 years later the patent has still not been granted and may never actually be granted perhaps due to other existing similar gagdet patents

Person B copies the design and starts making/selling virtually identical gadgets at a lower price.

No logos/emblems/markings are involved, so there’s no copywright/trademark infringement. Furthermore technically no patent has been broken as it has yet to be granted.

What proctection does Person A have ? Other than retrospective litigation if the patent is ever granted ?


There are no patent police. Even if gadget A was patented, it is the owner of that patent’s responsibility to bring suit against companies infringing on their IP.

However you can not bring suit for infringement of IP on a patent that has not been granted !

In this scenario someone can infringe IP for several years or long as any patent process takes, with impunity ?

You can file a provisional patent application. It kind of serves as a place holder for your patent, and gives you an earlier filing date with much less stringent filing requirements. But you have a limited time (a year) to fulfill all the regular requirements for a patent or it is worth nothing.

If you can’t get all your stuff together for a patent any quicker than several years, you might as well stay out of the game. You clearly had no idea how to manufacture the product or let something leak waaaay too early.

You can announce that a patent has been applied for - indeed you see this quite commonly on items. If someone else starts to manufacture a copy before the patent has been granted you can contact them and suggest that they either desist, or perhaps, that they licence the right to manufacture the patented item. They can refuse of course. But if the patent is later granted you will have grounds to extend the damages awarded back to the date of the patent application. So refusal on the part of manufacturer B isn’t risk free. They hope that the patent won’t be granted, you hope it will.

It is however illegal to claim that a patent application is pending when it is not the case. I think that one does attract a criminal charge, rather than just being a civil matter.

A patent means you have come up with a unique and novel idea for a physical design… although it seems nowadays the patent office approves almost anything.
Examples -
anyone who makes shirts or pants is likely just copying what’s out there. You can copyright or trademark a style or cut if it’s distinctive, but I doubt Old Navy can enforce exclusive rights on “Basic Tee shirt”.
There’s obvious, and prior art. you can’t patent the wheel just because nobody else has.
However, it does not need to be complex. Someone came up with the idea and patented it for those paper-clip holders with a magnet at the top - shake it a bit and some clips stick out, making them easy to grab. Simple, yes? but magnets and paper clips had been around for a long time before someone thought this up - therefore, new idea, patent.
Combining two obvious ideas may not be patentable - everyone knows how to make radios now, everyone knows how to make bobble-heads. Making a bobble-head with a radio inside is pretty obvious. (I hope). If you start marketing bobble-heads of Mona Lisa with a radio inside (I picked a figure that is out of copyright) then Fred across the street can start making them too. If your bobble-head is punk-haired Mona Lisa with multiple piercings, you’ve created a transformative new work and copying that would probably violate copyright.
If you copy a simple electronics, unpatentable - i.e. a radio with blinking lights - no patent violation. If you basically photograph and reproduce Fred’s circuit board, however, you may be violating Fred’s copyright on the specific design of that specific board. (Copyright does not have to be registered - it exists from the moment you create a work).

basically, if you plan to do something clever or questionable, better check with a lawyer first. Patent police may not put you in jail, but the patent judge may give Fred all your profits to date and then some.

Firstly thanks for all the responses. I think I have a good picture of the scenarios I was after from what you have said.

Where I think it can become very murky is with the scenario MD2000 suggested

With electronics you can effectively reproduce Fred’s circuit board with a different PCB arrangement and using different chips. The level to which someone can then claim that it is infringing IP becomes highly subjective, especially in this case and many others in electronic where individual elements are prior art. In this case the blinking lights and radio components are standard and their combination is, most likely, not patentable.

The question is with a device that is essentially comprised of prior art how much does something have to be changed to become novel / or what combination is novel ? I suppose that is something a judge and several lawyers would have to decide :dubious:

yeah. An IC amp or a power supply - odds are there are a million plans out there in books, in chip manufacturers’ literature, etc. The configuration of an electronic circuit would have to be incredibly novel to patent it. IBM took the shortcut with their PC, used off the shelf parts for everything instead of home-made parts. As a result, there was nothing novel about the PC except maybe specific design decisions - what address is the serial port chip, what address space is the display driver chip and the page of video memory. But whether the serial port uses interrupt 1 or 3 or 7, for example, is not so novel that it can be patented. Thanks to their foresight the standardized PC was born.