Q: Infringement of patent

A: This is a very difficult and complicated question. A non-provisional patent generally covers the function of an item whereas a design patent covers the ornamental look of a product but not its function. You can still infringe on A patent by changing its design if your new product “reads on” the claims in the non-Provisional Patent. In other words if your product has been described in an earlier non-provisional patent you will be infringing on them. However if your competitor had a Design Patent but your new design does not duplicate the original Design you may be OK with a new design. An extended conversation would have to take place to really narrow down your needs. Best of luck

A: Congratulations on your new business! And congratulations on thinking about patents so early in the game; there is nothing worse then sinking lots of money into a product, only to find out that it is already covered by someone else's patent.

Before you spend money on redesigning your product, go talk to a patent attorney. The attorney should be able to tell you how likely a court would find infringement. If it is likely that someone making, selling, or using your product would likely infringe on your competitor's patent, then you should be able to work with the attorney to find a way of redesigning your product significantly enough to clearly not infringe.

You want to make sure that the design that you put on the market is clearly not infringing, not just not infringing. What I mean is that not only do you not want to not have a product that infringes the competitor's patent, you also do not want to have a product that is close enough that it does not likely infringe: you do not want to make and sell a product that you could be sued about even if you turn out to be victorious in the end.

If you wish, contact me to discuss this further.