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   How much different must a product be?
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   Author  Topic: How much different must a product be?  (Read 681 times)
Ted Mckenzie
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How much different must a product be?
« on: Jun 9th, 2007, 1:28pm »
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How much different must a product be design wise?
 
I want to distribute swim fins made overseas but they are similar to other swim fins that have a patent in the USA.
 
Is there a percentage of how different they must be?
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Bill Richards
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Re: How much different must a product be?
« Reply #1 on: Jun 9th, 2007, 8:17pm »
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on Jun 9th, 2007, 1:28pm, Ted Mckenzie wrote:
How much different must a product be design wise?

Not to be filp, but it depends.  The claims define what is protected.  Is there a design patent or utility patent?
 
Quote:
Is there a percentage of how different they must be?

Nope!
« Last Edit: Jun 10th, 2007, 3:21am by Bill Richards » IP Logged

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JimIvey
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  jamesdivey  
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Re: How much different must a product be?
« Reply #2 on: Jun 10th, 2007, 7:23pm »
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on Jun 9th, 2007, 1:28pm, Ted Mckenzie wrote:
Is there a percentage of how different they must be?

Just to add weight to Bill's answer, there's no set percentage by which you must be different to not infringe.  You just have to be different enough that the language of the claim(s) doesn't describe your product.
 
As an aside, I'm always baffled about the idea that differences can be reduced to a percentage.  How would such a percentage be measured?  2 cars are identical except one has tail fins and fuel injection and a manual transmission whereas the other has no tail fins but a spoiler, carburetion, and an automatic transmission.  What percentage is that?  What's the percentage difference between beer and wine? between white wine and red  wine? between Merlot and Cabernet?  between Fetzer's Merlot and Sutter Home Merlot?  between Sutter Home Merlot 2004 and Sutter Home Merlot 2006? between Sutter Home Merlot 2006 and 10-50W motoroil?  between 10-50W motoroil and an elephant?
 
Suppose I say beer and wine are 30% different and the examiner/court says they're only 10% different.  By what criteria to we argue for one or the other or an entirely different percentage?
 
The thing that seems odd to me is that there seems to be a general perception that determining a percentage difference would be relatively easy.  Am I missing something?  Is it really easy?
 
Here's an interesting suggestion that just came to me.  Let's define 10% diffference to be equivalent to just barely non-obvious.  Now, we have an answer:  "Yes, you must be 10% different."  Then, people go away happy.....
 
Not to be too hard on the original poster -- just pontificating as to how the percentage approach would be an easier path to an answer.  If someone told me to determine whether two things are at least 10% different (without our new definition above), I would just stare back blankly.  At least with "non-obvious" as the standard, I have some clue as to how to think about the question (even back when I was a newbie at patents).
 
Regards.
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