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Sally Hopkins

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Location : Northlake, IL.

PostSubject: Patent Claims & Product Similarities   Fri Jun 19, 2009 11:58 am

Hello,
I have been doing patent researching, I have to say this is an area that can be interpreted differently just based on the person reading the patent.
I would like to know when you read a patent "claim" how much of that information is really applicable.

I would like to use examples and see what kind of answers I will receive.

Can you patent a heating process?
My example I will use is a microwave dinner. Can they patent food items or any materials being heated in a microwave? If so then who would have the rights? Does the microwave dinner person get paid, when the microwave popcorn guy developed his product? Would this be considered a heating process?

Can a patent be infringed if you use similar materials but your claim is for a design and used that it completely different.

Another example would be an electronic product that uses copper wire, if a person makes something that uses wire are they obligated to pay the wire guy?

Can the materials you use to make a product ,be patented even if it is a natural material that anyone can make or lets say grow?

Also how many people can get the same patent on similar products. When I was researching I found patent claims for the same thing but with different designs. What is then being patented, the design, the materials used, or the whole product?

Sorry... but I really feel this area can be terribly confusing to and average person that really doesn't know what exactly they should really be looking for Shocked

Thank you so much for any help or guidance you can provide.
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Bill Goldblatt

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PostSubject: Re: Patent Claims & Product Similarities   Fri Jun 19, 2009 5:46 pm

This area might be confusing, but it is really simple in some respect. You can pretty much patent anything that would be considered both "novel and non-obvious" relative to any prior art.

Ultimately, a very minor change to an existing product (or process) can make a product patentable. Yet, in principle, your inner voice which tells you that your idea isn’t patentable may very well be correct. Your patent protection is in effect limited to whatever is novel and non-obvious relative to any prior art, and if your change is real minor there is a good chance than any resulting patent would offer such narrow protection that it might not be worth patenting.

A symbolic example I like to use is this -

Say somebody goes ahead and invents and patents the hamburger. You can go ahead and invent and patent the cheeseburger. The owner of the hamburger patent cannot go ahead and sell cheeseburgers without infringing your patent. Yet, in lieu of a licensing agreement, chances are you can’t go ahead and start selling cheeseburgers without infringing the hamburger patent.

Now….its also possible that the hamburger guy’s patent has already expired. In this case, the cheeseburger guy can sell his cheeseburgers without infringing the hamburger patent.

Now, say thirty years down the line, someone invents and patents the triple jalapeno cheeseburger, claiming three beef patties, four slices of cheddar cheese placed around/in between the three patties, exactly eight strips of bacon, topped with lettuce, tomato, and four jalapeno peppers….

That guy has very narrow patent protection, and as a result with patent is only worth so much....in fact, someone including only three jalpeno peppers would not be infringing the above patent.

FWIW, to begin to try and determine infringement on your own (note that claims analysis can be complicated, so if there is a lot at stake refer to a trusted attorney or agent):

If a claim includes: Elements A, B, C, and D, you are not infringing unless your product also includes all four of those elements. In fact, depending on exactly how that claim is written, it is possible (but not necessarily likely) that you are not infringing if your product includes all four elements plus a fifth element not covered by the claim.

If a claim includes: Element A, and nothing else, it is possible than any product containing Element A would infringe the claim.
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Lesia

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Location : Texas

PostSubject: Patent Question   Fri Jun 19, 2009 6:09 pm

So cheeseburger guy gets a patent anyway, right? But cheeseburger may still be infringing on hamburger guys patent, what if someone does not know they are infringing on someone else, due to the fact they have their patent....If this happens, do you wait on hamburger guy to say "Hey your infringing" or does someone at the patent office tell you who you will need to contact to keep from infringing on their rights??

I hope this question is not a crazy one......But I am really curious about that??
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Bill Goldblatt

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PostSubject: Re: Patent Claims & Product Similarities   Fri Jun 19, 2009 8:23 pm

Lesia wrote:
So cheeseburger guy gets a patent anyway, right? But cheeseburger may still be infringing on hamburger guys patent, what if someone does not know they are infringing on someone else, due to the fact they have their patent....If this happens, do you wait on hamburger guy to say "Hey your infringing" or does someone at the patent office tell you who you will need to contact to keep from infringing on their rights??

If cheeseburger guy does not know he is infringing on hamburger guy (presumably because he is unaware of hamburger guy and/or his patent), it is not necessarily held against him (and/or if he has reason to believe he is not infringing, i.e. has received a legal opinion that he is not infringing, it wouldn't necessarily be held against him). It is, on some level, hamburger guy's responsibility to notify cheeseburger guy that he is infringing and must stop if he wants to collect damages (prior to the filing of a lawsuit, which obviously constitutes notice).

At the same time however, even if hamburger guy is slacking and fails to notice cheeseburger guy for some time, he still might be able to collect pre-suit damages if he can successfully show that cheeseburger guy should have been aware of the hamburger patent and had to have known he was infringing it - for example, perhaps hamburger guy became popular, and each one of his hamburgers was sold in a wrapper containing the statement: "protected by US Patent 5,555,555." And/or, perhaps cheeseburger guy cannot document that he ever conducted a patent search or researched the market at all before introducing his cheeseburger to the market - in this instance he can be accused of willful ignorance.

Your question is not a crazy one at all. Although, its worth noting that nobody should assume that they cannot possibly be infringing someone else just because a patent has been issued to them. That shows a misunderstanding of patent law, and will hold no weight in a court of law.
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Lesia

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Location : Texas

PostSubject: Addition to my question   Fri Jun 19, 2009 8:32 pm

So am I to also assume that when I am researching patents that are even remotely close to something I may be working on....That I should have proof that I did my research prior to applying for a patent?? And if so, would it be sufficient to add this research into my inventors notebook??

Thank you so much for all the great answers!!
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Bill Goldblatt

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PostSubject: Re: Patent Claims & Product Similarities   Sat Jun 20, 2009 6:25 pm

Lesia wrote:
So am I to also assume that when I am researching patents that are even remotely close to something I may be working on....That I should have proof that I did my research prior to applying for a patent?? And if so, would it be sufficient to add this research into my inventors notebook??

It couldn't hurt...and the research does not necessarily need to live up to high standards in that context, intent matters to a large extent. But you want to do your research right anyways, knowledge is power. And, when documenting your research, noting down how you are conducting your search, i.e. by listing classifications you searched or what not, can probably help.

Also, to clarify statements above, it is the patent search that matters more so than overall market research in this context.
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Sally Hopkins

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Location : Northlake, IL.

PostSubject: Re: Patent Claims & Product Similarities   Sat Jun 20, 2009 10:35 pm

Hello Bill,
Thank you for the information you have posted.

I still have a question mark above my head, so I will rephrase 1 of my questions a little to see if I can clear up my own confusion.

You make reference to "the hamburger guy" lets say you are making something out of hamburger, you cook it, but it is not meant to be eaten. Your product made from hamburger also gets cooked the same way a hamburger does but it is used to patch a whole in the wall. Does that make your product different enough?
Is everyone that cooks ground beef infringing on hamburger guy?

Thank you for your time and help it is really appreciated Smile
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Bill Goldblatt

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PostSubject: Re: Patent Claims & Product Similarities   Sat Jun 20, 2009 10:50 pm

Sally Hopkins wrote:


You make reference to "the hamburger guy" lets say you are making something out of hamburger, you cook it, but it is not meant to be eaten. Your product made from hamburger also gets cooked the same way a hamburger does but it is used to patch a whole in the wall. Does that make your product different enough?

Different enough to patent your own invention? Well, if hamburger patties already exist, even if you were to make a hamburger patty and use it for something other than eating it, the product itself is still nothing new.

Maybe, if you don't see anybody cooking up any tiny hamburger patties, you could try and patent a differently shaped hamburger patty, but good luck arguing non-obviousness.

You could obtain a design patent perhaps on a hamburger patty that had a unique shape.

And to most specifically answer your question - you could patent a novel and non-obvious method for using a hamburger patty to patch up a wall.

Quote :
Is everyone that cooks ground beef infringing on hamburger guy?

It depends on exactly what his patent claims. Hypothetically, the hamburger guy himself could be infringing on (or could be licensing) a patent held by the inventor of ground beef.
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Sally Hopkins

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Location : Northlake, IL.

PostSubject: Re: Patent Claims & Product Similarities   Sat Jun 20, 2009 11:01 pm

Thank you Bill Very Happy
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