Patent infringement on a very simple invention?

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Patent infringement on a very simple invention?

Our competition has patented a very simple device. Its prior art was a coffee spoon with a hook on the end, to hang it over the edge of a cup. The invention modified the spoon a bit shape is bent, bottom part is made rectangular, measuring scale is added on bottom. The device is used to scoop

out a specific supplement and hang it over a cup, to make the supplement dissolve. Their patent includes an independent claim regarding the device itself and several dependent claims one of which lists a method for scooping the supplement. Can we make and use a very similar device, for the same result without patenting it? Can we claim that their invention is obvious and not novel? A spoon with a hook has been invented before. A ruler has been invented before. A bent spoon has been invented too. However, all these weren’t combined before, and they weren’t used for this specific supplement before.

Asked on March 9, 2018 under Business Law, Massachusetts

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 3 years ago | Contributor

If they were issued the patent, you cannot make a device which infringes the patent UNLESS you are willing to put it to the test in court: that is, do something potentially infringing, see if they notice it and take legal action, and then in court try to convince the court that their patent should not have been granted and/or that you are not infringing. Patent infringement actions can be very expensive even if you win; they can be ruinously expensive if you lose. Consult in detail with a patent law attorney about whether your proposed device infringes and, if it does, what your chance of litigation success is. Bring the attorney a model  or prototype of your spoon, a sample of the competitor's spoon (i.e. buy one), and a link to or print out of the patent. If what you propose is not worth at least the cost of a consultation with a patent attorney, it will certainly NOT be worth a potential infringement action.


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