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Topic: Patent Infringement & Patent Claims (Read 1244 times) |
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captain
Newbie
Posts: 2
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Patent Infringement & Patent Claims
« on: Oct 31st, 2007, 4:31pm » |
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My patent has 13 diagrams showing possible embodiments. The patent has 2 sets of claims. None of the claims appear to state clearly to me, as a layman, what is in two of the diagrams/embodiments:
1. product is free standing (diagram/embodiment) vs. attached to a an enclosing wall (claim)
2. includes an entrance from the bottom platform (diagram/embodiment) vs. entrance from an enclosing wall (claim) - NOTE: diagram/embodiment shows both wall and platform/floor entrance while infringing product has only platform/floor entrance
This may just be legalese I'm not familiar with, but I'm concerned that someone may have found a loop-hole in my patent, which I found today. I will be contacting my attorney tomorrow but it may take a few days to get a response and I'm hoping for a little reassurance in the meantime.
The infringing product clearly duplicates the abstract, background, and summary of my invention in design and marketing verbiage.
Any comments would be very much appreciated.
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| « Last Edit: Oct 31st, 2007, 4:43pm by captain » |
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patag2001
Junior Member
Posts: 82
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Re: Patent Infringement & Patent Claims
« Reply #1 on: Oct 31st, 2007, 5:06pm » |
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It is always good to see the inventor review the claims. Often I find inventors really don’t go through the claims. And yes, one should always think about “work-arounds” in studying through the claims. Good for you!
Each element of the claims should be supported by a reference number of the appropriate figure. Frequently, the name used in the specification is a proxy for the name used in the claim. Make sure that the specification does not unnecessarily limit the definition of the claim elements. Even a broad claim can be limited by the manner the element is described in the specification. When I write patents, I number the claim elements with the reference numbers used in the figures using hidden text. This allows me to provide the inventor the ability to better read the claims. Also, later when I respond to the office action, I can more quickly get up to speed on what I wrote two years earlier.
You should be able to read the claim and in parallel step through the appropriate figure. If not, you should have the practitioner walk you through the claims. As a general comment, I typically try to avoid using negatives in claims if at all possible.
I hope this helps.
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captain
Newbie
Posts: 2
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Re: Patent Infringement & Patent Claims
« Reply #2 on: Oct 31st, 2007, 5:35pm » |
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Thank you!
The section of the patent entitled "Detailed Description of the Preferred Embodiment" does infact explain each reference number in each drawing/embodiment. I was concerned that under this section, there is also "The present invention is intended to be limited only by the scope of the appended claims. What is claimed: ..." and I was concerned that was a separate section and exclusive of the embodiments/drawings.
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JimIvey
Moderator
Senior Member
 
Posts: 2584
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Re: Patent Infringement & Patent Claims
« Reply #3 on: Nov 2nd, 2007, 10:48am » |
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on Oct 31st, 2007, 5:35pm, captain wrote:| ... I was concerned that was a separate section and exclusive of the embodiments/drawings. |
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It is. The claims define what infringes your patent. If none of the claims cover a feasible/viable/valuable implementation of your invention, they should be fixed.
Is your "patent" really a patent, i.e., issued and no long just an application? If so, are there any related applications (claiming priority of your "patent") still pending? Fixing the claims should be no problem, although new rules re continuation practice may limit your options significantly.
If your patent is issued and there are no related applications still pending, then you may try a reissue application -- available to broaden your coverage only if your patent issued within 2 years of the filing of your reissue application.
If your "patent" is really just an application (not yet issued), you can fix the claims pretty easily -- again, within the limts of the new restrictions on continuation practice.
Regards.
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James D. Ivey
Law Offices of James D. Ivey
http://www.iveylaw.com
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