1

I have an idea that I am currently researching and I cannot find a product like it on the market. I looked through some existing patents and am now curious what I should be looking for.

I do realize that an attorney would do a thorough patent search to make sure I am not infringing on something so at this stage I am just trying to make sure there is nothing obvious. Would love some insight.

As an example: The idea I have would be a small sleeve/pouch for a smartphone, tablet or even laptop. I see sleeves like this all the time but I am looking to improve the properties of the fabric/lining for a very specific purpose. I did find some patents for a "Phone Pouch" or "Phone Sleeve" but at first glance I'm not sure if my idea would infringe on the patent.

What should I be reviewing when trying to understand if my idea infringes on the patent?

  • Possible duplicate with this answer which covers how to do a personal patent search: patents.stackexchange.com/questions/17010/… – Eric Shain May 24 '17 at 20:20
  • Possible duplicate of any other patents involving baseball caps for pigtails? – Eric Shain May 24 '17 at 20:21
  • I disagree with the duplicate question since I am not really asking about searching patents but asking about the limitations of the related patents. An example, can someone patent all variations of a "phone sleeve" and if so, how do I discern that when looking at the patent. – Steven Carlton May 24 '17 at 22:55
  • You need to focus on the claims. Only the claims define what is protected. – Eric Shain May 25 '17 at 12:13
  • If you have a specific question about what a specific patent covers, you can edit your question to include that. Otherwise, your current question it too broad to answer. – Eric Shain May 25 '17 at 14:26
1

What you are asking about is called freedom to operate. Freedom to operate is a challenging question to answer. Even the best legal opinion might not matter if you get before a jury of lay people. That said, what you need to focus on when evaluating a patent is what is described in the claims. It is pretty routine to find a patent where the specification seems to be describing broad areas of technology and find the claims are actually narrowly written. So focus on the claims first, especially the independent claims. Independent claims don't refer to other claims. To infringe on a claim, you need to implement each and every aspect of the claim. Thus, if a claims states something like: "...a phone sleeve implementing feature A, B and C" and your product only implements features A and C, you probably don't infringe on that claim. It doesn't mean there isn't another patent that covers just A and C however. When you find a relevant patent, look at the cited patents to get more possible patents to review. You can look at the file history in the US Public Pair site. This can be really useful to see what the examiner cited as prior art.

Doing your own research is important, but I can't emphasize too strongly that you should also consult with a patent attorney or agent. Doing your homework will make this interaction more efficient and thus cheaper. I'm not an attorney, but I've been told that if you have a legal opinion of freedom to operate, it could help keep you from having to pay punitive damages should you eventually lose an infringement suit. (Perhaps one of the actual attorneys on this site could confirm this information.)


There is an added element related to patent law regarding legal precedents. This may be particularly important in the current era, due to recent changes in the interpretation of eligibility requirements. Thus, you need to look not just at potentially prior art in relation to your invention, but also prior rulings.

Law review articles are a great place to do preliminary research, and the financial publications always publish stories on important patent cases. You can also generally find the rulings themselves online.

  • @StevenCarlton This is very sound advice. I give the added caveat that, even if you post the specific claims here, it may require a specialist (a patent attorney who specializes in that field) to get solid advice on this particular set of claims. Patent law is not only concerned with the technical aspects of an invention, but with legal precedents. – DukeZhou Jun 8 '17 at 16:39
  • 1
    @DukeZhou Really excellent suggestion. Please feel free to edit my a answer if you would like. – Eric Shain Jun 8 '17 at 18:45
  • Thank you. I agree that an attorney would be needed to verify I am in the clear but this is extremely helpful info for the "idea" phase. – Steven Carlton Jun 9 '17 at 22:40

Your Answer

By clicking “Post Your Answer”, you agree to our terms of service, privacy policy and cookie policy

Not the answer you're looking for? Browse other questions tagged or ask your own question.