Asked in Copyright and Patents (Intellectual Property)

Q: Regarding US 20160206031 A1, does this mean all magnetic eyelashes would be an infringement?

I like many other sellers on Amazon are selling magnetic false eyelashes similar to what One Two Cosmetics claims to have a pending patent. I know this patent is still not approved, but I want to make sure I will not be infringing on it if/when it is approved. Can you tell me what this patent covers and what would be allowed?

Thanks in advance!

1 Lawyer Answer
Mr. Brett Trout
Mr. Brett Trout
  • Intellectual Property Lawyer
  • Des Moines, IA

A: Assuming this patent application issued as a patent with only its existing claim, not all magnetic eyelashes would be an infringement. However, to avoid infringement of a hypothetically issued patent, you would have to examine all of the claims in the patent to make sure you were NOT doing at least one element of every claim. For instance, assume a patent issued with claim 1 reading as follows:

A false eyelash comprised of:

a substrate strip having a first surface and a second surface, said substrate strip having a generally elongated shape and a longitudinal axis, said first surface and said second surface located on opposing sides of said substrate strip;

a plurality of hairs affixed to, and extending from, said substrate strip, said hairs oriented substantially perpendicularly with respect to said longitudinal axis; and

one or more flat metallic elements affixed to said substrate strip.

To avoid infringement, your product would have to NOT have one of those items to avoid infringement. Even if your product eliminates one of the elements, if the element your product does have performs substantially the same function, in substantially the same way, to yield substantially the same result your product may still infringe. You would then repeat the process for every other claim in the hypothetically issued patent.

MOST IMPORTANTLY, determination of what or what does not infringe a patent claim can be an extremely complicated process, involving the analysis of the proceedings before the Patent and Trademark Office and mountains of other patents and documents. DO NOT move forward on the assumption you do not infringe a patent without a formal written legal opinion from a patent attorney well-versed in drafting patent infringement opinions.

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