Same usecase, different method - is this infringement?

Question

So we are a cash strapped startup with almost zero budget for a proper FTO. We have done a patent landscape analysis in order to get an idea of similar patents. To date, we can't find any similar patents in terms of method (to give some context from what we have seen in even the academic literature our method is almost completely novel/obscure and could open up a new field of research). We have decided to apply our technology to medical imaging, though the applications are far broader. We are in the process of writing up a provisional patent to get a filing date.

What we have found are many similar use cases with different methods. Typically these methods are deep learning/machine learning focussed. My question is, is it possible for these companies to claim under a doctrine of equivalents if we are addressing the same issue in a completely different way? Given we are using different methods, and software patents are typically for methods my intuition and my brain are telling me we are in a good position from an FTO perspective - however without any money to pay for an FTO we are concerned about the situation.

If there are any relatively inexpensive things we can do to de-risk things further then we could scrape together a small budget.

Answers much appreciated!

Edit: one more slightly related question. Could we opt to keep this as a trade secret and if that is the case, would we have to show any evidence that we do not use the same method?

Answer 1

A method claim in an issued patent is structured as a series of steps or actions. An infringement analysis looks to see if your product takes each and every one of those steps - on a per claim basis. The doctrine of equivalents is not given much use/weight these days but if it was used in an infringement analysis it would be a comparison of one or more particular claimed steps and corresponding ones of your steps to see if they were equivalent. Is your step 2 equivalent to the claimed step 2, for example? It is not a broad comparison of achieving the same result. Patents do not cover results, they cover specific ways of getting a result.

You getting a patent is unrelated to your product infringing or not infringing someone else's patent. There is no such thing as a provisional patent, only a provisional patent application. And the date you get is only as good as the content of the provisional application justifies.

Answer 2

My question is, is it possible for these companies to claim under a doctrine of equivalents if we are addressing the same issue in a completely different way? Given we are using different methods, and software patents are typically for methods

Yes, they may claim your process under doctrine of equivalents if your process falls under their claim scope.

Eg: If the patent claim granted was a method of baking a cake and patent disclosed only disclosed using oven. You might develop a method of baking a cake using an alternative may be as burner.

Scenario 1: It might be considered infringement under doctrine of equivalents, if the plaintiff could prove that the alternative was not foreseeable during development of patent.

Scenario 2: You might escape from infringement by proving proof that use of burner was already taught or used before the patent filing date and freely use it.

This may be a vague example which I have defined but, as you are performing FTO without an experienced IP professional please look into the available alternatives methods that are available prior to the patent as described in scenario 2 and try to use the same as it would foreclose the use of Doctrine of equivalents.