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Let's assume we have a patent that describes a textile product containing > 30 % cotton.

Would another aka the "same" product infringe this patent if:

  1. it would have 70 % cotton
  2. it would have 15 % cotton
  3. it would have cotton

and all other features are identical?

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  • From your question, as written, it is not clear what the issue is that you are concerned about. You will get a better answer if you can flesh out your question.
    – George White
    Sep 14 at 18:52
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The term is infringe, not violate. And something that does or does not infringe might or might not be patentable on its own you may have an erroneous premise that not infringing implies patentabillity.

By saying "the same", in this context, I assume you mean some other fabric that meets the definition of one or more claims of the hypothetical patent and therefore would infringe.

If one element of a claim was the textile had greater that 30% cotton, then something with 70% cotton qualifies as meeting that single element of the claim and something with 15% does not. The item with 70% might not satisfy all of the elements of the claim and therefore we do not have enough information to know if it infringes. Just having > 30% cotton will not be the only criteria in the claim.

A new textile might or might not be new and non-obvious in light of everything that has ever been patented or published anywhere in the world ever, not just in relation to the hypothetical patent of the question. Your new textile can have anywhere from 0-100% cotton and either be patentable or not.

One common confusion is the thinking that a product that infringes a patent can’t, itself, be patented. That’s incorrect. It’s a bad example, but if the only limitation in a patent claim was >30% cotton then something with the previously impossible 90% would clearly infringe it, 90 > 30. It also might well be patentable itself. However that patentee couldn’t make it without the permission of the >30% patent owner.

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  • Thanks, yes, I meant, considering a product which provides the same features but the amount of cotton.
    – Ben
    Sep 15 at 7:13
  • Another question: Just assuming producing a product with > 90 % cotton is very complicated and it has never been managed to produce something like this, would this still infringe the "> 30 %" criterion? Let's further assume an amount of up to 70 % is well known but everything above is a matter of R&D for a while.
    – Ben
    Sep 15 at 7:19
  • See added info in answer
    – George White
    Sep 15 at 7:34
  • Thank you, how would it be patentable with 90 % when the former patent would contain the "> 30 %" criterion?
    – Ben
    Sep 15 at 8:00
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    It would be due to specific claims about how to get to 90%.
    – George White
    Sep 15 at 15:12

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