Patent infringement on a very simple invention?

UPDATED: Oct 1, 2022

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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


SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 4 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.

IMPORTANT NOTICE: The Answer(s) provided above are for general information only. The attorney providing the answer was not serving as the attorney for the person submitting the question or in any attorney-client relationship with such person. Laws may vary from state to state, and sometimes change. Tiny variations in the facts, or a fact not set forth in a question, often can change a legal outcome or an attorney's conclusion. Although has verified the attorney was admitted to practice law in at least one jurisdiction, he or she may not be authorized to practice law in the jurisdiction referred to in the question, nor is he or she necessarily experienced in the area of the law involved. Unlike the information in the Answer(s) above, upon which you should NOT rely, for personal advice you can rely upon we suggest you retain an attorney to represent you.

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