Q: Regarding the porter case patent.. if I change the material or a little design just a little is it acceptable?
A: I am not sure which Porter Case patent you are referring, so it is hard to answer this question. But here are some guidelines.
(1) There appears that are only about 6 Porter Case patents. Some of these are pretty old, and they have expired by now, but some are still in force. You need to check which of these categories the patent that you are concerned about falls into.
(2) I did not review the claims as much as one should in order to advise you, but it seems that at least some of the claims recite cases by how it is constructed or designed. The ones I saw don't seem to claim the material from which they are constructed. This means that if you change the design of the case sufficiently, you'd be outside of the scope of the claims, but if you change the material, you'd still be within the claims. So you are going to have to argue that you do not infringe the patent because of the design and not the material.
(3) Just how little is enough be outside of the scope of the claims? It is difficult to say, because sometimes a tiny change will get you outside of the scope of the claims, and at other times even a big change won't. Every patent is different. It is a crapshoot. It depends on how many other patents to the similar thing are out there, and how much of an innovation this product is. The safest way would be to be much closer to the design of carry-on cases that were cited against the patent application during the prosecution, but Porter Case argued that their product is different.
Please let me know if you need more help.
A: The answer from Mr. Mlynek is correct. Here are some things to help flesh out the vocabulary. What you are seeking is an opinion on whether your changes give you Freedom to Operate (FTO) relative to one or more patents that you have found. Additional information on this topic may be found at https://www.flynniplaw.com/services/legal-services/freedom-to-operate/opinions .
It may be prudent to add additional differences between your product and the claims in non-expired patents, this can be tricky because of a weird set of rules under the Doctrine of Equivalence (where the patent claim covers more than it literally covers). It is a good idea to work with a patent attorney with the right technical background to help you do this work. See https://www.flynniplaw.com/services/legal-services/freedom-to-operate/design-around-guidance
Before doing any heavy lifting, it is a good idea to have a patent attorney check to ensure that the patent that is of concern is still in force. You can look at my answers to other questions to see how to check to see if a patent is still in force.
I hope this helps.
Kevin E Flynn
Justia Ask a Lawyer is a forum for consumers to get answers to basic legal questions. Any information sent through Justia Ask a Lawyer is not secure and is done so on a non-confidential basis only.
The use of this website to ask questions or receive answers does not create an attorney–client relationship between you and Justia, or between you and any attorney who receives your information or responds to your questions, nor is it intended to create such a relationship. Additionally, no responses on this forum constitute legal advice, which must be tailored to the specific circumstances of each case. You should not act upon information provided in Justia Ask a Lawyer without seeking professional counsel from an attorney admitted or authorized to practice in your jurisdiction. Justia assumes no responsibility to any person who relies on information contained on or received through this site and disclaims all liability in respect to such information.
Justia cannot guarantee that the information on this website (including any legal information provided by an attorney through this service) is accurate, complete, or up-to-date. While we intend to make every attempt to keep the information on this site current, the owners of and contributors to this site make no claims, promises or guarantees about the accuracy, completeness or adequacy of the information contained in or linked to from this site.