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'.

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.

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.

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.

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.