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Does a different design that serves the same function as a patented item infringe the patent?I am building a 1/2 scale bowling pinsetter for home use. It may incorporate designs and functions of existing bowling machines but no direct copies. The key here is functionality. Do I risk patent infringement in my device if some of the mechanisms serve the same function as existing machines. Attorney answers (3)
Reputation Level 18
Answered over 2 years ago.
Intellectual Property Law Attorney in Sacramento, CA.
There's much in your question that I don't understand. The gist, I think, is that you're worried about infringing a patent if you build your contraption.
No one can tell you if you would be infringing someone's patent rights until a patent attorney performs a thorough comparison of your contraption with all the relevant patents. But if your product will only see the inside of your own home, why be concerned at all? While it is an infringement to make, sell, use, or import a product that embodies all the elements of a patent claim, the patent owner will suffer little to no damage if your contraption is used only in your home. Though not inconceivable, it's extraordinarily unlikely that the patent owner would object. So ... your contraption may or may not infringe and, if it does infringe, the patent owner may or not object. How's that for useless lawyer talk? If I were you, and I'm not, I would not worry a minute about infringing anyone's patent rights. Just keep the contraption in your house and do not publish its schematics. 2 people marked this answer as good
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Reputation Level 8
Answered over 2 years ago.
Patent Application Attorney in Crystal Lake, IL.
True - if the product is for home personal use, then it may or may not infringe but there is very little risk a patent owner will come after you, as Mr. Ballard has stated above.
However, let's take this a step further - what if your pinsetter does such an amazing job, that you think to yourself - "I should approach a pinsetting company and see if they will license/buy this product" - then two issues arise: first, you should not approach a company without having patent protection; but you should also try to be sure that your invention does not infringe existing patents. This is where knowing what else is out there and patented may come in handy. But you should also be aware that to infringe, you have to compare your pinsetter to the claims of enforceable patents. Your pinsetter would not infringe unless it had each and every element of at least one claim of a patent (and sometimes, functional equivalents do satisfy claim elements.) But patents expire 20 years after the filing date of the patent applications, so if you are copying pinsetters that have been out in the public domain for many, many years, then there are likely no patents in existence anyway. -Steve Scherrer Registered US patent and trademark attorney sscherrer@patents-tms.com 1 person marked this answer as good
Reputation Level 9
Answered over 2 years ago.
Patent Application Attorney in Novi, MI.
As was previously pointed out, the key concern is the relationship between your design and the language of the claims of any existing patents that may be in force. You suggested that your design is functionally equivalent but structurally different. Typically, a mechanical based invention such as a pinsetter would include claim language based on the structural nature of the design. However, it is possible that the claims could be written as a method or process for setting pins, i.e., using functional rather than structural language. Thus, you need to consider how the previous patents claimed their inventive concepts, structurally, or functionally. Keep in mind that it is also common to attach functional language to structural components for the sake of clarity. Accordingly, it is possible that a different structural design could infringe by preforming the same function if there is a patent out there that claims (using functional language) the function that your design accomplishes.
If you intend to use your design for anything other than home use, it would be very advisable to have a patent attorney conduct a prior art search and possibly provide a non-infringement analysis. 1 person marked this answer as good
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