same product without foil

Question

In reference to the patent: US8317762

Does the patent still hold if the product does not use the same material, and some different ingredients?

Answer 1

To determine freedom-to-operate, you must carefully review the claims. To infringe on a patent, you need to include every element of at least one claim. This patent has two independent claims. Here they are:

1. A skin patch for absorbing toxins from a body comprising:

   a first side comprising a heat reflective foil comprising titanium;

   a second side comprising a non-woven rayon surface configured for absorbing and retaining the toxins, said rayon surface comprising a plurality of openings configured for enhancing transmission of far infrared ray emission into a skin when said second side is placed in contact with the skin;

   and a mixture of natural ingredients consisting of, by weight, 24% vinegar, 0.8% chitosan, 0.8% loquat leaf, 0.8% houttuynia cordata, 0.8% vitamin C, 60% tourmaline, 4% vegetable fiber, and 8.8% dextrin, said mixture formulated to emit said far infrared ray emission, whereby blood circulation is promoted and perspiration and any toxins contained therein are absorbed by said rayon surface.

and

9. A skin patch for absorbing toxins from a body comprising:

   means for reflecting heat from far infrared ray emissions;

   means for absorbing and retaining the toxins; means for enhancing transmission of far infrared ray emissions into a skin;

   and means for emitting said far infrared ray emissions, whereby blood circulation is promoted and perspiration and any toxins contained therein are absorbed by said absorbing means;

   wherein said skin patch contains a mixture of natural ingredients consisting of by weight, 24% vinegar, 0.8% chitosan, 0.8% loquat leaf, 0.8% houttuynia cordata, 0.8% vitamin C, 60% tourmaline, 4% vegetable fiber, and 8.8% dextrin.

These claims are remarkably specific so I would think they would be reasonably easy to circumvent. Perhaps by leaving one of the ingredients out. That said, people actually pay good money to patent attorneys to get freedom-to-operate opinions so please don't consider this as one.

One thing to remember is that there is no burden to prove your invention actually works in order to obtain a patent. I've run across many patents that simply don't work as described. I'm not going to offer an opinion on this patent, but there are publications which research whether toxins are excreted with sweat. You might want to review those.