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In reference to the patent: US8863947

According to claims 1 & 11 the controlled substance is placed into a plastic bag prior to sealing the pop-top can. If a plastic bag is not used and the controlled substance is loose in the can is it patent infringement?

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Omitting the plastic bag would eliminate literal infringement of the claim but there is always the possibility of infringement under the doctrine of equivalents. However the claims already seem very broad even with the plastic bag. Thus, I would be surprised if such a claim would be found valid if challenged and even more surprised if found Infringed by a product omitting the plastic bag.

  • I agree, omitting seems okay, replacing the plastic bag by a platic-like bag maybe not. – DonQuiKong May 10 '18 at 11:44
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In order to infringe on a claim, your device must include each and every element of the claim.

Looking at the first claim:

  1. A container for preservation, storage, tracking and transport of a controlled substance comprising:

    (a) a one piece lower can portion containing a controlled substance;

    (b) a one piece lid having a pop-top opening affixed to said lower can portion;

    (c) a sealable plastic bag and an insert spacer means for taking up empty space left within said lower can portion; and

    (d) means for identifying the controlled substance held within said container; wherein the controlled substance is placed in said sealable plastic bag and said sealable plastic bag is sealed before the container is sealed.

If you don't implement the plastic bag, you are avoiding step 1(c) and 1(d) so presumably you would be OK with respect to infringement of this claim.

That said, freedom-to-operate evaluations can be tricky and there are potentially other patents that may be relevant. It is always best to obtain an actual legal opinion from a patent lawyer before proceeding.

  • Simply omitting the "means for identifying the controlled substance" would also appear to defeat element (d) of this particular claim. – Upnorth Aug 13 '17 at 21:48
  • @Upnorth I agreed – Eric Shain Aug 13 '17 at 22:04
  • Avoiding element 1(d), by itself, probably defeats the claim, even if one were to use the "sealable plastic bag". Sorry if I misunderstood your analysis regarding 1(c) AND 1(d). – Upnorth Aug 14 '17 at 4:08

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