Intellectual Property Law
Intellectual Property Law Questions? Ask a Lawyer
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you are correct to note that you can contact retailer who is selling infringing product and demand that they cease selling the product
Generally speaking you can include them as defendants in the law suit and based on that you would be able to request an injunction from the court to order them to stop selling the product. Though note that if the retailers are innocent parties you may not be able to recover damages from them, but nonetheless you should include them as defendants so that the court could issue an injunction to them
One addition to the above, you may be able to sue the retailer for account of profits but you may also do so in the form of a cease and desist letter. This is a strategic decision your litigating attorney would make in preparation for trial
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Just to reconfirm, the retailer is not selling the infringing product, they are selling products produced with the use of the infringing product. Does this have a different view to you answer?
As part of the process in producing the goods, an infringed product was used. the final product that the retailer buys does not contain the infringed product.
Thank you for the clarification. My position would still be somewhat the same since 'but for' the infringement of the enabling product, the product that the retailer is selling could not have been made. The chain of causality is still there from the point of view of a possible injunction the patent holder can seek to cease the sale of the products. However it will likely put a limit on the collection of damages from the retailer for their infringing use.
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