Existing Patent?

[drecalde]

California

I am considering making an item for sale. I did research on patents and found one that I think is what I am planning on doing. The one thing that I see that is different is the material that I am planning to use isn't listed as a type of material for the patent. There is a lot to a patent I don't understand, so I don't want to make any mistakes. Any advice would be appreciated.

Thanks,
Dawn

 

[divgradcurl]

Unless the material specified in the patent is crucial to the operation of the invention in some way, simply changing from one material to another is probably not sufficient to protect you from a charge of infringement. However, there are other issues to consider that get pretty complicated in a hurry, and are very fact-specific. It would probably be in your best interest to talk with an experienced patent attorney to get a non-infringment opinion before getting too far along.

Longer, more complicated answer, with same ending: There is a concept in patent law known as doctrine of equivalents (DOE) that basically says that a patent covers everything it claims AND its equivalents. Just what an equivalent is exactly is a question for the courts. However, it is also true that if the patentee, during prosecution of the patent, specifically "gave up" certain equivalents -- that is, narrowed his claims -- in order to get the patent issued, he can't go back and reclaim those equivalents once the patent issues. This is known as prosecution history estoppel or file wrapper estoppel, and, again, is a question for the courts. And this is just the beginning...

That's why talking to a patent lawyer would be the prudent thing to do.