Is this a breach of Patency?

[wenmian]

What is the name of your state?Please advise whether the following scenario is a breach of patent.
Any advise will be greatly appreciated.

Product A is a patented product. More specifically, it is a carrier
bag to contain a specific item which it is specifically designed for.

Product B is a product with the following features:
- Product B is made of the same material
- The shape of product B is similar to Product A but the dimensions
are completely different
- Product B is designed to contain an item different from that of
Product A

Please advise whether Product B is a breach of Product A using the
worst case scenario.

To illustrate the scenario clearer, let's illustrate with an example.

Product A is a carrier bag designed to carry books around. It is made
of Ballistic Nylon material. Product A has a distinct RECTANGULAR
shape and is patented for both utility and design.

Product B is a carrier bag made of the same material(Ballistic NYLON)
as Product A. Product B has a similar shape to product A. However,
Product B has a longer length and narrower width. Product B is also
much smaller in dimension compared to Product A. Product B is designed
as a cosmetic bag to carry cosmetics around.

Please advise what are the chances that Product B will breach Product
A's patent based on the strictest criterias.

Will the factors listed below allow Product B to get pass Product A's
patents

1. Different dimensions
2. Slightly different shape
3. Different functions

Thanks in advance!

Mian

 

[divgradcurl]

Unfortunately, there really isn't any easy way to answer your question. Whether or not a particular product is going to infringe on another's patent requires a very detailed analysis of not only the product and the patent, but also the history of the patent (its "prosecution history" -- basically everything that happened during the process of getting the patent) and whatever the most current caselaw says. Basically, someone will need to read the patent, especially the claims, decide what the claims actually cover ("construe" the claims, based on what the patent itself says and current caselaw), decide whether or not the patent is entitled to even broader protections (based on prosecution history and caselaw), THEN you can compare your product and see if it is likely to infringe on the other patent.

Just to give you an idea, a large law firm in a major city, say San Francisco, would probably charge between $5,000 and $15,000 for a full non-infringement analysis for a moderately complex patent. It would be cheaper for a simpler patent, and cheaper for a smaller firm (or a solo attorney) working outside of a large city, but this can give you some idea of the complexity of what you are asking.

If you are working on something that you want to productize and make money off of, you would be well-served to talk with a local attorney who can review all of the facts and give you an estimate for a non-infringement analysis of your product.

 

[wenmian]

Thank you divgradcurl for your reply

What happens if Product A is still in the stages of patent pending and there is no access to the patent documents. What is the implication of the patent pending status on the similarity of Product B.

How does the patent pending status protect something when it has yet to be processed and approved?

Thank you.

 

[divgradcurl]

Until a patent actually issues on an invention, there is no protection for the invention -- "patent pending" just means that a patent has been applied for, and it provides no protection on its own. You can't sue somebody for infringing a "pending" patent.

However -- if and when a patent DOES issue, the patent owner then may assert his or her rights.

So, if the other guy has a patent in the application process, he can't stop you from doing something similar. However, if and when his patent issues, then he can stop you from making your product (assuming your product infringes).

Finally, the non-infringement analysis I mentioned above can't be undertaken in a full manner until the patent issues, because the scope of the claims almost always changes between the application and the issue.

 

[wenmian]

Thanks for the help...really appreciate your advice!