How different does a product need to be to be marketable without infringing on a patent? 4 Answers as of November 16, 2010

I had an idea for a product I could market, not majorly, but in my spare time. I do not want to give the details, but I will give you an example. I know someone who makes do it yourself photobooths and sells them on etsy.com. It is a kit that helps you make it yourself so you do not have to pay the ridiculous prices to rent a photobooth. My question is is it patent infringement to market this kind of photobooth if the person who invented photobooths has a patent for them? Assume for the sake of the analogy the the person with the patent is the only one who sells them. How different from the patented product does my product need to be for me to market it without infringing on the copyright.

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Kafantaris Law Group
Kafantaris Law Group | Theo Kafantaris
Every patent varies, and you would really have to take a look at the claims to see whether you are infringing or not. For example, if the claims specifically state that the booth must have a Polaroid camera, and you use a digital camera, you would not be infringing on their patent. Likewise, if it states that the booth must be larger than 8'x5' and yours is 7'x4', you would not be infringing.
Answer Applies to: California
Replied: 11/16/2010
Mark S. Hubert PC
Mark S. Hubert PC | Mark Hubert
You need just not to have one single element of each claim or the functional equivalent thereof.
Answer Applies to: Oregon
Replied: 11/11/2010
Fish & Associates, PC
Fish & Associates, PC | Robert D. Fish
Regarding patents, a competitor needs to fall outside the scope of each of the valid claims of the patent in question. Determination of the scope of the patent claims, and whether or not a given product or method falls within the scope of the patent is can be quite difficult, and often turns on individual words or phrases in the claims. Determination of validity can also be quite complicated, and depends upon many factors, including especially the prior art. In a litigation setting opposing parties can easily spend hundreds of thousands of dollars arguing about both scope of claims and validity. Sometime one hears some simplistic statement that a product must be 10% different from the claimed subject matter to avoid infringement, but that is just nonsense. First, there is no basis for a "percentage difference" in patent law, and second, it is not even clear what a 10% difference would mean.

Copyright infringement can be even fuzzier. Infringement only exists to the extent that registered material is copied, so one needs to consult any relevant copyright registration. There are also concepts of fair use, and in the case of non-exact copying, the closeness that a derivative has to the registered work. That can be a very complicated analysis, involving level of abstraction, and so forth.

I am afraid these answers will be unsatisfying if you are searching for something simple. Unfortunately, these are all issues that can be very complex, and that in many cases require considerable analysis.
Answer Applies to: California
Replied: 11/11/2010
Ochoa and Associates
Ochoa and Associates | Susan Ochoa Spiering
This can not be answered easily and quickly. Infringement must be studied carefully and the claims of the issued patent(s) studied and compared to the product. Need to consult an attorney in person for this question.
Answer Applies to: Texas
Replied: 11/10/2010
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