Linden, MI asked in Business Law and Patents (Intellectual Property) for Michigan

Q: If a product has a similar purpose as another BUT it is a different design and material is a patent infringement?

My mother sews and saw a product a few years back that was neat - She thought it would work better with a different design and material - however it serves the same purpose - the other company that has a patent-pending on it contacted us today and I was curious where we can find the exact info on that exact patent pending to see if we can still produce my mom's product or we need to stop - of course we want to follow the laws and rules around product creation - There are so many creative people in this world and we see lots of items that serve ONE purpose but have different designs to give the users options - we just want to make sure we stay legal

2 Lawyer Answers
Kevin E. Flynn
Kevin E. Flynn
PREMIUM
Answered
  • Patents Lawyer
  • Chapel Hill, NC

A: The rights provided in an issued patent are very specific. The rights are to preclude others from doing what is in one of the claims. To infringe a claim, one needs to do everything in the claim (or a legal equivalent to what is in the claim).

This gets tricky. If a patent owner has reached out to you, it is time to consult with a patent attorney to see 1) whether there are issued and non-expired patent rights and 2) whether what you mother is doing falls within those patent rights.

There are lots of branches and nuances that might become relevant after that first discussion such as the ability to design around the claims or to invalidate overly broad claims, but the first step is a careful comparison of your mother's product and the issued claims.

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: It is hard to say without specifics, but if there is an activity like sewing that has been around for thousands of years, and a company comes up with a new product to help workers perform the activity better, the company will likely patent the product, as well as a method of using that product.

If your mother saw the product and changed it for her purposes, she may or may not be infringing the patent claims depending on how much she tweaked it. A patent attorney will need to take a look at the allowed claims in a valid patent, interpret the claims, and compare your mother's product to the claims. It may be that the claims are so broad and her change was too small, that she would be infringing, or it may be the opposite.

Although a patent has not yet issued, the patent application filer has "provisional rights", meaning that they get reasonable royalties between the application publication date and the patent issue date.

If you've received a letter from the patent applicant, you may want to seek a patent attorney to help you in providing you with some options.

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