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I made a flask out of one of my sculptures. This flask is made from a shrunken head that what sculptured by me.. Now this guy says he has a patent pending and he is going to sue me .. If I have never seen his product how can this be? Is there a rule on how many similarities a product must have to infringe on his patent? Or how many differences I must have if his item is patented?

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This should be on the Ask Patents site, not the Meta site. –  George White Nov 12 '13 at 23:50
    
Very hard to provide useful answer without more information. –  George White Nov 13 '13 at 17:37
    
Do you know if the application is for a utility patent or is for a design patent? –  George White Nov 13 '13 at 17:52
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1 Answer 1

First, once someone says "sue", I would contact a lawyer to get actual advice. I am knowledgeable about patent law but am not an attorney.

A pending patent wouldn't give anyone the right to sue. They could put you on notice that their application is on file and that if and when it issues as a patent they think they will have rights they could use against your activities.

If they end up with a patent, the fact that you independently developed your product is not a defense. Copyright involves copying, patent infringement can be "innocent", and still be infringement.

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Your last comment is one of the things that trouble me about the patent system. I know that one of your primary goals for your presence on askpatents is to show the world that the patent system isn't as bad as the rap it gets, but this sounds like a pretty bad fact. If I can unknowingly violate a pending patent, why is that not a defense? Wouldn't that fall under "obvious" if two people independently invent something simultaneously? –  McKay Nov 13 '13 at 20:48
    
It is common to all patent systems that the exclusivity granted by the government doesn't depend on the infringer copying the originator. The societal trade that patent systems implement is that in return for an inventor teaching us all about their invention they get a limited time of exclusivity. Looking at an item being imported or used or sold how would one know whether or not it was independently invented? It is hard enough for courts to decide if any particular item infringes any specific patent. Unlike copyright, infringing a patent does not require an exact or almost exact copy. –  George White Nov 14 '13 at 0:50
    
The new patent law does provide rights (Prior user rights defense) to someone unknowingly infringing who independently developed a product before a patent was granted. The same people can keep making whatever they were making in the same location they have been making it in. Separately - Many very important, world changing, inventions were made by two people at the same time. It can mean that an important problem was clear, the technology pieces were almost there and people were racing toward the reward of solving it first. Some would say that is a major plus of patent systems –  George White Nov 14 '13 at 1:08
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