Can my products a trade show be seized for patent infringement?

Can my products a trade show be seized for patent infringement?

Trade shows are a good opportunity for manufacturers to demonstrate their products to potential customers.  Manufacturers frequently bring samples of their products to let the public see and touch the product. A successful trade show can help boost a small company’s sales dramatically.  A disappointing trade show can put a company into bankruptcy.

Because of the high density of sellers and buyers in one space at a trade show, sellers are looking for any way to make their products more noticeable to potential buyers.  Some sellers will go so far as to get a competitor’s products seized by the police for patent infringement.  Seize of products for patent infringement at a trade show is extremely rare but it has happened.  How does a patent owner get the police to seize a competitor’s products at a trade show?

A patent is a set of exclusive rights granted to the inventor of an invention, by a government.  To get a patent an inventor must file a patent application which demonstrates the invention is worthy of patent protection.  To be approved, the patent application must demonstrate that, the invention is new, useful and not-obvious.  In the United States patent applications are reviewed by the United States Patent and Trademark Office. If the United States Patent and Trademark Office determines that the invention claimed in the patent complies with all of the requirements of United States patent law, the patent application will be granted.  The patent owner is granted the exclusive right to make, use, sell, import, or distribute the patented invention within the United States.  If someone other than the patent owner attempts to exercise one of these exclusive rights, that can be considered patent infringement.  A patent owner can file a lawsuit to get monetary damages for patent infringement which has occurred or to get an injunction to stop patent infringement from occurring.

If a seller at a trade show wanted to stop a competitor from displaying a product which infringed on the seller’s patent, the seller would need to file a lawsuit and request an injunction.  Specially the seller would need to request a temporary restraining order and a seizure order.  Temporary restraining orders and seizure orders are granted rarely and only if the party requesting them can demonstrate that they will suffer irreparable harm if  the order is not granted.  Temporary restraining orders and seizure orders are ex parte orders, which means the order will be executed without giving the defendant an opportunity to defend itself.  After the ex parte orders are executed the court will set a date to give the defendant an opportunity to dispute the order.  Seizure orders issued by a United States Federal District Court are carried out by United States Marshalls.

Getting a seizure order is not the first choice of patent owners.  First, it is extremely difficult to prove to the court that the plaintiff deserves a seizure order.  Second, if it turns out that the plaintiff made a mistake the injured defendant can recover damages for lost profits, loss of good will, and attorney’s fees, and the court can even assess punitive damages if it finds that the action was brought in bad faith.

Rarely will a patent owner attempt to get a seizure order without first sending a letter to their competitor.  If you receive a letter accusing you of patent infringement before a trade show it is best to discuss it with an experienced patent attorney.

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