Can Products Be Similar Without Violating Patent Laws?

By Michelle Kaminsky

Can Products Be Similar Without Violating Patent Laws?

By Michelle Kaminsky

Because patents protect inventions and not products, it is possible that two very similar products do not violate any patent laws. This general principle holds true so long as the invention that underlies the two products is different.

It is important to note, however, that a product could infringe on a patent—even if it seems quite different—if the product contains any feature that is protected by patent. Therefore, the most important way to determine whether your product infringes on a patent is by conducting a careful analysis of the patent's claims.

Patenting an Invention

Taking a step back, it is useful to discuss how an invention receives patent protection in the first place. For an invention to obtain a patent from the U.S. Patent and Trademark Office, it must be novel and nonobvious, which means that it must be original and not a trivial or routine advancement on an existing patent. Section 103 of Title 35 of the U.S. Code, for example, requires that the claimed invention must not have been obvious to a “person having ordinary skill in the art to which the claimed invention pertains."

Moreover, every patent application must include “claims," which tell the examiner what subject matter, exactly, the protection would cover. A patent generally includes more than one claim, and in order to avoid a patent infringement lawsuit, a product must not include the content of any claim currently covered by an existing patent.

Patents in the Public Domain

When a patent expires, the invention enters the public domain, which means that anyone may use it in another product. In other words, one product can be similar to another without violating patent laws even if elements of the first product are based on an expired patent.

The drug Lisinopril, used to treat hypertension, is a prime example of an expired patent that forms the basis of many similar products. Because the invention is in the public domain, similar products do not violate any sort of patent because protection for Lisinopril has long since expired.

One caveat to this general rule, however, is that other live patents may still cover parts of the elements found in a patent. To better ensure you're not violating an existing patent, you should hire a legal professional to perform a freedom to operate (FTO) search, also called an infringement analysis or clearance search, to determine whether any live patents still claim features in your product. Such a search involves delving into existing and pending patents to form a legal opinion on whether a product, process, or service might violate a patent.

The Percentage Rule Myth

Some people believe that changing a certain portion, such as 10 or 30%, of a product will avoid patent infringement, but this common belief is a myth. There is no such rule in the law that allows you to change any percentage of a patent's protected features and escape infringement allegations. Relying on this mistaken belief can be dangerous and open you up to a patent infringement lawsuit.

Again, to determine whether your product infringes on a patent, you must look to the claims of the patent and compare them with the features of your product. If you have even the slightest indication that your product could be infringing on a patent, it's time to secure legal help.

Make no mistake: patent infringement lawsuits can be expensive to defend and take years to resolve—and then, if the decision doesn't go your way, penalties for patent infringement can be incredibly high. Having the right legal assistance on your side early in the process can make a huge difference in the outcome of any potential patent battle.

This portion of the site is for informational purposes only. The content is not legal advice. The statements and opinions are the expression of author, not LegalZoom, and have not been evaluated by LegalZoom for accuracy, completeness, or changes in the law.