Long Island City, NY asked in Patents (Intellectual Property) for New York

Q: Accidentally similar composition to this tablecloth patent, but different category, is this okay?

I am in the process of making washable coloring poster, accidentally similar composition to this tablecloth patent. I am using 100% polyester fabric (instead of a blend like this tablecloth), and the same Polyurethane backing - will this violate the patent?

Purpose is very similar, but different product category? What ways can i differentiate further? Thank you.

2 Lawyer Answers
Kevin E. Flynn
Kevin E. Flynn
PREMIUM
Answered
  • Patents Lawyer
  • Chapel Hill, NC
  • Licensed in New York

A: Your question did not include the patent number.

But here are some basic pointers.

1) Make sure that the patent of potential interest is still in force. It may have expired at the end of its full term. It may have lapsed early for failure to pay a maintenance fee.

2) Look at the claims. Ignore for now the intended use of the item listed in the introduction to the claim. Now look to see if you have each noun, each verb, and each required relationship. If you cannot find a no-brainer -- I do not have this required piece -- then it is time to consult with a patent attorney for a deeper dive.

3) The accidentally part does not totally excuse you. Unlike copyright infringement whey you have to copy -- you can be an innocent patent infringer and face liability. An infringer that willfully infringes a patent that he knows about just risks amplified "enhanced" damages.

If you found this answer helpful, you may want to look at my answers to other questions about patent law are available at the bottom of my profile page at

https://lawyers.justia.com/lawyer/kevin-e-flynn-880338

Kevin E Flynn

Peter D. Mlynek
Peter D. Mlynek
Answered
  • Patents Lawyer
  • Moorestown, NJ

A: You do not provide us with enough information to provide you with guidance. But I've done plenty of similar patents (I've worked in polyurethane industry for years), so I may have a few pointers based on what is typically done in the industry.

The bad news for you is that if the patent attorney writing the patent application did the job correctly, the patent claims should be written to encompass a cloth comprising layers of polyester fabric and polyurethane backing. Such a cloth could be used for any purpose, including a tablecloth, thus it would cover other uses of the cloth. But it is possible that the patent in question will be just for the use as a tablecloth, I dunno.

The good news for you is that there are so many patents and articles out there about cloths comprising layers of polyesters and polyurethanes, that in order to obtain a valid patent the claims must be pretty narrow. If the patent in question requires a specific blend of polyester, and you are using a 100% polyester, then you would be outside the scope of the claims.

The above is based on what is typically the case in such technologies, but you really should reach out to a qualified patent attorney to give you a non-infringement opinion.

Good luck!

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