MAY I MANUFACTURE AND SELL AN INVENTION DESCRIBED IN A PATENT FROM 1957?

10 May 2017

Before answering this question it´s necessary to understand what right a patent gives. That´s because a patent does not give anyone the right of producing or selling anything. A patent gives its owner the right of prohibiting others - the so-called third-parties - to produce, sell, use or import a protected invention without the owner´s authorization.

 

This means that it is possible that not even the 1957 patent owner had the right of producing and selling the patented invention. It´s ironic, but the patent has absolutely nothing to do with the authorization of producing and selling. It may be the case of a simple invention, such as an essay tube and that this tube does not require any authorization to be fabricated... But, if the invention is a medicament, surely, its production and sales will have to be authorized by a sanitary authority. Even if it does not have a patent! And is exactly because of this that a patent examiner just verifies the patent requirements. It´s not for him/her to verify if a medicament is safe or effective. Think about a sanitary agency: (i) ANVISA, in Brazil; (ii) FDA, in USA (iii) EMA, in Europe or its national agencies or the (iv) CDSCO in India. And that´s the case not just for medicaments, any activity that may offer a risk may also be regulated. ICAO, for example, is worried about aviation safety. 

 

Hence, I beg your pardon to reformulate the question to: MAY THE OWNER OF A 1957 PATENT PROHIBIT ME OF PRODUCING AND SELLING ITS INVENTION? 

 

As they say, more important than the answers are the questions! Rsrs So, the answer to this second question is NO. 

 

As a rule, a patent extends for twenty years. As we are talking about 1957, this means that since 1977, the owner of the patent can no longer prohibit anyone of producing, selling, using or importing its invention... Note that the patent owner´s rights do not include the right to prohibit research. That means that a researcher may never be prohibited of employing a technology for scientific purposes. Even if it is protected by a patent!   

 

That, however, does not mean that you can do any of these things! No, no. Before, you need to check if any authorization of production is needed in the local regulatory agencies. And, besides that, you need to check if there isn´t any other patent, more recent than this one from 1957, with any improvement that may be used against you. You don´t want to spend a fortune to open a factory just to see it closed later because of a patent and still see yourself having to pay reparation to the owner, do you?

 

So, it´s always wise, before exploring a patent, to check with a good patent professional if it is available or if it has any restriction. 

 

In summary, a technology described in a 1957 document is, in theory, free for copies. It´s wise, however, before opening the factory, to check if there aren´t any other patent documents or if market introduction authorizations are needed, specially sanitary ones. 

 

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