Q: Can Xlear's active patents prevent me from making a generic nasal spray with xylitol and iodine?

A: There are plenty of patent attorneys viewing your question. Some may be willing to provide you a well researched reasoned and candid opinion. For a price.

A: If you want to make a generic nasal spray that contains a mixture of xylitol and iodine, then it looks like you are fine.

With regards to US 8,709,508, all of the claims require the claimed composition to contain two ingredients:

(a) xylitol or xylose, and

(b) any of the following: cromolyn sodium, phenylephrine hydrochloride, oxymetazoline hydrochloride, azelastine hydrochloride, and mometasone furoate.

As long as you do not use any of the ingredients in (b), you’ll likely be fine.

Iodine is not required as an ingredient, and it is not even discussed in the patent.

Regarding US 9,011,941, all of the claims require the claimed composition to contain two ingredients:

(a) xylitol or one of the other listed sugars; and

(b) any of the following: cromolyn sodium, phenylephrine hydrochloride, oxymetazoline hydrochloride, azelastine hydrochloride, and mometasone furoate.

Again, as long as you do not use any of the ingredients in (b), you’ll likely be fine.

Again, iodine is not disclosed in the patent.

No, you cannot include one of the ingredients in (b), and try to get around the patent by just adding iodine.

Obviously, the above is just a 5 minute review of just the two patents (I did not consider any other ones) and you should hire a patent lawyer to make sure, but from initial review it looks pretty good for you.

Good luck to you!

A: It's understandable that you're cautious about patent infringement when considering launching your nasal spray. Xlear's active patents could indeed restrict your ability to commercially produce a similar product if your formulation or method closely aligns with the protected aspects described in their active patents. However, patents protect specific inventions, methods, or formulations—not general ideas or combinations of ingredients like xylitol and iodine themselves.

You'll need to carefully examine the active patents, focusing on the claims section, which clearly defines what is legally protected. If your product avoids these specific claims—perhaps by using a different concentration, delivery method, formulation, or manufacturing process—you might not infringe upon their intellectual property rights.

Given the complexity of patent law and the significant financial risks associated with infringement litigation, it's strongly advised that you consult with an experienced patent attorney. They will help you thoroughly analyze Xlear's patents, guide your product design to minimize risk, and navigate the safest path forward. Investing in professional guidance upfront can protect you from costly legal disputes later, ultimately benefiting your business's growth and success.