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I had an idea for a child safety product in early 2020.

Between then and now (my idea is still in design stage) a similar product has appeared on the market.

They have a patent application pending. There is one functional aspect of the product that is identical to the same aspect of my idea, and the wording in the patent makes that clear.

The rest of their design is similar, but the wording of those aspects of their patent indicates mine would not infringe.

My idea has one significant difference that is absent from their patent application.

If I continue development of my product, would I be infringing on their IP?

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It all depends on the allowed claims. You won't know that until the patent gets granted (or not) as claims are often amended to achieve patentability. To infringe on a claim, you need to implement all the aspects of that claim. If a claim is for a device with A, B and C and your product implements only A and B, then you shouldn't infringe. If your product has A, B, C and D then you do infringe on that claim. I should point out there is every possibility that other relevant patents exist too.

What you are looking for is a "freedom to operate opinion". There is no way random people on the internet can provide those. We don't know the specifics of the patent (should it actually be granted) or your product. The proper action for you is to consult with an actual patent attorney. It is the cost of doing business.

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  • Their claim is for a device with features A, B, C, and my idea has features A, B, D, E. However, there is a line in the patent application which groups features ABC by simplifying the description of the device (so features ABC could be described by AB, and likewise features ABDE could be described by AB): "An X according to any one of the preceding claims in which the A is separate from the B and in which the A is connected to the B by connecting means." This broadly describes both devices, even though my B is different from their B. ​ Jan 3 at 15:03
  • @user8731804 Again, you don't now their claims until a patent is issued. Claims in applications can and usually do change. There is no way we can give you legal advice on whether you actually infringe on this application. You'll need a lawyer for that.
    – Eric S
    Jan 3 at 15:24
  • Understood. I have contacted a lawyer. Jan 3 at 16:32
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If I continue development of my product, would I be infringing on their IP?

To answer your question, developing a product does not infringe a patent, as patent protection means that the invention cannot be commercially made, used, distributed, imported, or sold by others without the patent owner's consent. But as soon as you commercially make, use, distribute, import, or sell it, you need the consent of the patent owner.

A better question would be:

Is it worth it for you to continue developing your product?

And the answer depends on the claimed products. Remaining by the example of an existence of a single patented product with a feature-set of [A, B, C], there are the following possibilities:

  1. Your product has one of the following feature-set: [A], [B], [C], [A, B], [B, C], [A, C], [A, B, C]

  2. Your product has a feature-set of [A, B, C, D], e.g. you've got extra feature(s) compared to the existing product

  3. Your product has a feature-set of [A, C, D], e.g. your product is missing at least one feature and it has an extra feature compared to the existing product

In case 1, all of the features of your product is already disclosed by the existing product. Thus, you cannot get a patent for it. Also, if you want to commercially make, use, distribute, import, or sell it, you need the consent of the patent owner.

In case 2, all your product has an extra feature compared to the existing product. Your product is considered new and since there exists in this example only a single similar product, your product is inventive as well. Congratulation, that means your product is patentable. But as your product is based on the existing product, you still need the consent of the patent owner of the existing product, if you want to commercially make, use, distribute, import, or sell your product.

In case 3, your product is not relying completely on the existing product. Your product has an extra feature, while not having all the features of the existing product. Thus, your product is patentable and you do not need the consent of the patent owner of the existing product.

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  • A good answer. Even doing research on the project may infringe the existing patent. This is why there’s a research exemption for drugs. en.m.wikipedia.org/wiki/Research_exemption
    – Eric S
    Dec 17 '21 at 4:18
  • Their claim is for a device with features A, B, C, and my idea has features A, B, D, E. However, there is a line in the patent application which groups features ABC by simplifying the description of the device (so features ABC could be described by AB, and likewise features ABDE could be described by AB): "An X according to any one of the preceding claims in which the A is separate from the B and in which the A is connected to the B by connecting means." This broadly describes both devices, even though my B is different from their B. ​ Jan 3 at 15:03
  • If there exist an embodiment with features AB, you cannot claim only AB. if you claim ABD or ABDE you will fall in case 2, as you extended the already existing embodiment with features AB.
    – picibucor
    Jan 4 at 22:46

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