I have a device that, by itself, does not infringe a patent, but does when the user uses it, it is still patent infringement?
That is, by itself, it doesn't violate all the claims when made and in fact doesn't even have to be like the device in the patent, but can be(and is intended) to be used like the device in the patent.
Here is very simple example
Patent Claims
- A device that is square
- Said device in claim 1 has a round dot on it.
My device is square but no round dot on it. I intend the user to put the round dot on it for similar reasons in the patent so the device will be used the right way but they don't have to and it will still function. My device is not exactly like the patent device but very close.
The problem is, that the patented device uses some very general language and some things that are simply almost necessary. For example. Claim: The square is made out of wood. Well, there really is no other option. It can't be made out of metal, moth balls, cotton candy, etc... There are only 2 things that it can be made out of that will at all make it useful and the patent gets them both. It would be possible to make it out of the other things to get around the patent but then the device wouldn't be useful. Just take my word on it.
Another example is claim 2. It is necessary for the dot because without the dot the device can't function in any useful way. (just take it for granted... this is just a silly example)
It would be like patenting a bolt and the dots being analogous to the threads.. although at least that has a bit more alternatives. In my case there is no other way since either you put the dot on and the device works or you don't and it doesn't.
I know the example is silly but if it take it only in the context I've given and don't try to add anything extra and think about the logic itself it shouldn't be too hard to answer.
My guess is if I created my device and sold it I would get sued either way(since my device is better). Even though I created my device without any knowledge of the other and, while it is different it is also similar(but similar because there are very few ways to do it in the first place... and any engineer given the criteria would come up with a similar device). My device is better as it provides more utility but, again, had to follow certain fundamental engineering properties because it is the nature of the problem.
In the patent one of the claims is the thickness of the square and they say "Approximately 0.0001 in to 1.5 in" but if the device was even anywhere greater than 0.2 in it would be useless(too thick for the user).
The patent branches out a bit and covers many different variations of the device. It basically prevents any variations. Of course they did this to prevent competition. Unfortunately I've created a device, already have it done, that improves on the concept(again though, I didn't steal the idea because I didn't know about it until I started research the patents). Seems like my device may never see the light of day though. My only thought is that I could sale the device without the dot and let the user add the dot to it... even if that was possible it wouldn't be very viable as it is a bit difficult to add the dot(the average user would have to take it to a tech).
In the original patent they talk about assemblies an patent all the parts of the assembly(although each part except what I have come up with is has been around for centuries). They created their device, to be built as one while I created mine to be easily inserted into the already existing assemblies. Mine was about economy while theirs is not.
What gets me is that just about any engineer could come up with basically the same things if given just a few requirements and goals. The patent though prevents all these ideas by basically patenting how the device is to be used in another device(that isn't patented but is required to make the new device useful).
Another simple silly analogy is patenting a battery by patenting the devices that will use it and using general enough language to get all the devices that will use it. If you could do that you could prevent any other similar batteries, from being used. In my case the main device(the thing actually created) consists of just a simple circuit board with a few common ic's with very basic function(like just simple sensors and a ic to read them).