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Ltryptophan's avatar

Can a patent be so worded that a physically dissimilar concept could violate it?

Asked by Ltryptophan (10421points) December 29th, 2010

For instance, the original name of the zipper was automatic continuous clothing closure. That was enough to make me ponder the question.

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5 Answers

DrBill's avatar

yes, although the shape etc can have a patent so can the form and so can the function .

bolwerk's avatar

It’s a confusing subject. “Prior art” is one way to overturn a patent – did someone else already do it? Did they patent it already? Is it already established practice? Did the old patent expire?

There’s a reason there’s such a thing as patent lawyers.

flutherother's avatar

With patents whoever gets in first has the rights. That’s why patent lawyers will search prior art – to make sure the idea really is novel and hasn’t been thought of before. Patents are worded so that they claim as much as possible without being invalidated by prior art. There is often more than one way to skin a cat however and there may be other ways of doing what a particular patent protects without actually infringing it. It is very technical and very legal and as @bolwerk says you should get advice from a patent lawyer.

SavoirFaire's avatar

(I assume this question was asked as a matter of personal interest. If not, I concur with the recommendation to speak to a patent lawyer rather than acting on anything written below.)

There are three types of patents: utility patents, design patents, and plant patents.

I don’t know much about plant patents other than that you have to asexually reproduce a distinct type of plant. The distinction is both genetic and physical, but the correlation between genotype and phenotype in plants is such that the question probably doesn’t apply. You cannot patent an aberration, so a physically distinct instance of the same plant would just be an outlier.

Design patents are specified in terms of physical qualities, so anything physically dissimilar would necessarily fall outside the scope of the original patent. There is, however, a determination to be made by a court regarding how similar a physically dissimilar thing can be without violating the original patent.

Utility patents apply to processes, machines, manufactured objects, and synthesized compounds. A synthesized compound—called a “composition of matter” in the patent laws—is physically defined. It could be a chemical compound or a created microorganism, but in either case the physical features will be quite constant. Manufactured objects and machines are subject to similar rules as design patents. There are a lot of ways to make a hammer, and it is up to the courts to determine when something is so dissimilar as to no longer count (not that hammers are themselves actually patented by anyone). Processes, meanwhile, are specific methods for achieving some end. While there may be many ways to initiate a process, the basic process underlying everything is what matters.

The wording of a patent, however, is less important than some people think. A design patent contains a copy of the design. A utility patent for a machine contains specifications. These pictures are worth a thousand words, as the saying goes. In the case of the zipper, for instance, it is the device itself that is patented. Using a zipper on non-clothing items such as luggage still violates the patent because the description is not the only part of the patent. As noted by @flutherother, however, the wording can help guide the courts when making a determination of similarity or prior art. So while the wording may not be dispositive, it is still very important.

JaneraSolomon's avatar

Yes, physically dissimilar inventions may violate a patent. If for instance you patented a warning device that rings a bell when your car is running out of gas, if someone comes up with a different method of detecting the low gas volume and has a buzzer instead of a bell, you would still likely want to accuse them of infringing upon your patent. On the other hand, they might want to contest that, based on the differences, and then you end up in court, unless you can agree upon patent licensing terms that are more attractive than court costs.

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