Q: Patent 7803360 protects a product that is degradable underwater.
Does this mean that no one is never allowed to make a bio degradeble lure other than this company? If one would be able to create something, they wouldn't be able to sell it? Not quite sure I understand how this patent works. Or is the patent designed to protect their formula, meaning if one would have a similar product with the same effects but their own formula, they couldn't not be sued?
A: To understand what exclusive right is possessed by the patent owner, it is necessary to read the claims of the patent. The patent only provides the exclusive right to practice what is specified in the claims. Claims 1, 21, and 22 in this patent are independent claims. Unless a possible infringer prepares a product that meets all requirements of at least one of those claims, they should not be held to literally infringe any claim of this patent (if you don't infringe the "independent" claims - claims that do not recite any other claim - you cannot be infringing any dependent claim). Initially, you should consider the details recited in those claims, and determine if what you wish to make meets those requirements. If your desired product does meet those requirements, or if it seems to be a close call, you should consult with a patent attorney.
Kevin E. Flynn agrees with this answer
Patents are all about the claims. While the title is -- Water-degradable fishing lure -- the patent scope is much narrower than that. It is about a specific class of water-degradable fishing lures.
As long as you do not do -- 1. A fishing lure comprising a body that comprises at least one polyvinyl chloride (PVC) dispersion grade resin, at least one epoxy plasticizer, a citrate plasticizer present in an amount sufficient to impart biodegradability to the fishing lure body, and at least one fish attractant, wherein the body is degradable over time upon immersing the body in water such that the body exhibits a tear strength that is within 20% to 50% of an initial tear strength after immersion in fresh water at ambient temperature for 2600 hours, and the epoxy plasticizer and the PVC dispersion grade resin are present in a weight ratio ranging from about 5:1 to about 1:1, respectively.
and you do not do 21. A fishing lure comprising a body that comprises at least one polyvinyl chloride (PVC) dispersion grade resin, at least one epoxy plasticizer, a citrate plasticizer present in an amount sufficient to impart biodegradability to the fishing lure body, and at least one fish attractant, wherein the body is degradable over time upon immersing the body in water such that the body exhibits a tear strength that is within 20% to 50% of an initial tear strength after immersion in fresh water at ambient temperature for 2600 hours, wherein the epoxy plasticizer, the PVC dispersion grade resin, and citrate plasticizer are present in a weight ratio ranging from about 9:1.5:1 to about 1:1:5, respectively.
and you do not do 22. A fishing lure comprising a body that is degradable over time upon immersing the body in water such that the body exhibits a tear strength that is within 20% to 50% of an initial tear strength after immersion in fresh water at ambient temperature for 2600 hours, wherein the body comprises from about 10% to about 20% by weight vinyl resin, from about 15% to about 70% by weight epoxy plasticizer, from about 7% to about 70% by weight citrate plasticizer, from 0 to about 85% by weight supplemental plasticizer, fish attractant comprising menhaden oil present is an amount of from 1% to about 20% by weight, from 0 to about 0.1% by weight antioxidant, and from 0.1% to about 1.5% by weight heat stabilizer.
Then you have not infringed any of the independent claims in this patent. If you do not infringe any of the independent claims, you cannot infringe a claim that depends (adds further requirements to) from an independent claim.
So in short -- other people can make water degradable fishing lures as long as they stay clear of the specifics of this patent.
I hope that this helps.
Kevin E Flynn
It is the latter.
You certainly can make a biodegradable lure. People have been making biodegradable lures for decades. The lure that you want to make just cannot have the same composition as the one recited in the claims in the patent.
Claim 1 requires that the lure is comprised of 4 ingredients, that has a certain tear strength, and two ingredients are present in a certain ratio.
To get around this patent, you may want to use a different resin than PVC; try PSU, PPA, PPS, PPO, SPS, ABS, PU, copolymers thereof, or any other type of PVC resin substitute. Alternatively or additionally, you may want to use a different different plasticizer than a citrate plasticizer; try some other phthalate plasticizer substitutes, such as DINCH, DOTP, TXIB, DEHA, etc.
There are dozens of ways of being able to make a biodegradable lure that would not infringe on this patent. You should consult with a patent attorney before going forward with this, though.
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