Key Takeaways:

  • A patent must be distinct from existing inventions to avoid infringement, requiring novelty and non-obviousness.
  • Patents protect specific inventions, not the products they might become part of, allowing similar products to exist.
  • A patent claim is the key part that determines infringement, as opposed to the general similarity between products.
  • Inventions in the public domain are free to use without fear of infringement.
  • Business owners should proactively budget for patent protection to avoid infringement lawsuits.
  • Avoiding infringement is not about making minor changes; instead, it is about ensuring distinctiveness from any existing patent claims.
  • Working with legal experts can help inventors and business owners navigate the complex nature of patent law.

How different does a patent have to be to not violate patent law? There is no formula, such as a 20 percent difference being enough to avoid infringement. Instead, inventors should follow the requirements of distinctiveness: being novel and non-obvious.

Can Products Be Similar Without Committing Infringement?

The key thing to understand about products and patent laws is that patents don't protect products. They protect inventions. This explains why products that are very similar don't automatically violate patent laws.

If you think your invention is similar enough to another one that it may infringe on that invention, you should hire legal counsel to avoid the potentially steep penalties for infringement.

There's no single, clear definition for the term “invention” in the eyes of the law. Patent law simply states that the term means “invention or discovery.” The term doesn't refer to a product. In many cases, a patent may describe a product, but the invention being claimed is only a single element in the product.

Inventions that are novel can be patented. You can patent an invention, even when something similar already exists, if the elements in it aren't obvious. For instance, cell phones and cameras are known technologies. The combination of the two, however, wasn't always obvious. Although the cameras in cell phones are like other cameras, they appear in a non-obvious combination.

There's also the matter of public domain. A product may be similar to another one without committing infringement if the first product's elements are based on expired patents. For instance, many similar preparations of the drug Lisinopril exist. None of them violate patent law because the drug's original patent expired a long time ago, putting the invention in the public domain.

Products may be similar without violating patent laws when the underlying inventions in the products are different. For instance, Apple and Dell computers share similarities. However, the individual elements in each brand of computer are sufficiently different from the others'.

How Patents Protect Specific Inventions Rather Than Product Features

Patents secure specific inventive elements rather than entire products, which means that different products with similar functionalities might coexist without infringing upon each other’s patents. For instance, if two computers from different brands share similar functionalities or designs, they do not necessarily violate patent laws if each device incorporates unique patented elements that are distinct from one another. This allows for technological advancements across different brands while maintaining intellectual property boundaries​.

Avoiding Patent Infringement

Inventors and business owners should budget to avoid patent infringement. This is an upfront investment that can save them a substantial amount of money in the future.

Patent infringement lawsuits are time-consuming and expensive. No one should believe he or she can't be sued. Patent infringement cases are increasing, with many attorneys willing to take cases on contingency. If they win, they know they'll get paid.

Even small business owners can be sued for patent infringement, whether a large or small company owns the patent. For small businesses that may not be able to afford attorney costs, they may be bought out by a bigger business, which will have the means to bring suit.

Business owners shouldn't assume they know about every existing patent because even experts in their respective fields can't be familiar with every single patent or new technology. They may know a lot about their industry, but they may still unintentionally infringe on another person's patent.

Cost and Legal Risks Associated with Patent Infringement

Patent infringement can lead to severe legal and financial risks for both large companies and small businesses. Infringement lawsuits, which may require substantial legal resources, are increasingly common. Companies must anticipate these costs by setting aside funds for patent protections or by obtaining legal consultations to preemptively address any potential patent issues. Additionally, small businesses that may struggle with legal expenses could find themselves in vulnerable positions; larger companies may acquire them or initiate legal action if they feel their patents are infringed upon. Taking proactive steps to avoid potential conflicts with existing patents is a critical safeguard against such risks.

How Much Can You Change to Avoid Patent Infringement?

Many people undervalue patents these days because they mistakenly believe they can avoid infringement by changing their product by some percentage, such as 10 to 30 percent. There's no rule about how much you can modify a product to avoid infringement.

In the technical sense, infringement isn't about the difference between a product and a patent. In fact, a product may appear to be very different and still infringe. Instead, infringement is about the claims. Avoiding infringement isn't about adding to or changing the claims; it's about omitting what is in the claims.

Focusing on Patent Claims to Navigate Infringement Concerns

Infringement does not hinge on how different a product looks or operates, but rather on whether it includes elements outlined in existing patent claims. Therefore, making superficial or minor changes to a product, such as altering its appearance or adding non-essential features, does not typically circumvent infringement if the core claims of the original patent remain intact. Avoiding infringement requires understanding and steering clear of the specific claims documented in existing patents. Consultation with patent attorneys is advisable, as they can review patent claims and help determine whether an invention might potentially infringe.

What Counts as Distinctiveness?

Two different characteristics are required for distinctiveness in patent law:

  • Novelty: This means there's nothing exactly like yours in the prior art.
  • Non-obviousness: This is more challenging. The difference between what one person has invented and what others have done before can't be obvious to someone skilled in the field. It must be a little more unexpected. Someone in the field shouldn't be able to say, “That's something I could have done. I just didn't do it yet.”

Patent law is a complex area. If you're not completely sure your invention won't infringe on another person's patent, it's best to do your research before you attempt to use your creation.

Understanding Novelty and Non-Obviousness in Depth

The two pillars of distinctiveness—novelty and non-obviousness—are essential in determining patent eligibility. Novelty requires that an invention differs from all prior patents or publications, setting it apart as a unique contribution to the field. Non-obviousness, meanwhile, demands a more nuanced distinction: the invention should not be a logical next step that a skilled professional in the relevant field could easily deduce. This criterion prevents patents on innovations that represent minimal or predictable advances over prior art. Evaluating an invention’s non-obviousness often involves examining the unexpected functionalities or results that set it apart from previously patented inventions.

If you need help with patents, you can post your legal need on UpCounsel's marketplace. UpCounsel accepts only the top 5 percent of lawyers to its site. Lawyers on UpCounsel come from law schools such as Harvard Law and Yale Law and average 14 years of legal experience, including work with or on behalf of companies like Google, Menlo Ventures, and Airbnb.