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Ask Law Educator, Esq. Your Own Question
Law Educator, Esq.
Law Educator, Esq., Lawyer
Category: Intellectual Property Law
Satisfied Customers: 111607
Experience:  Attorney practicing all aspects of copyright/trademark law
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I have an idea to make a new type of non-lethal arrow,

Customer Question

i have an idea to make a new type of non-lethal arrow, however, after checking, I've found there's already a Patent US8932159 regarding a similar non-lethal arrow, there's some difference between mine and his. I want to know if I can apply a new patent.
Submitted: 9 months ago.
Category: Intellectual Property Law
Customer: replied 9 months ago.
here I attached the Patent US8932159 and my idea's draw for your reference.pls let me know if my idea can apply for a new Patent successfully.
If not, what should I do to avoid infringe this Patent US8932159thanks.
Expert:  Law Educator, Esq. replied 9 months ago.
Thank you for your question. I look forward to working with you to provide you the information you are seeking for educational purposes only.
You would have to argue your change is a "major material improvement" of the other design. I am not quite sure your change is a material improvement and that is the issue. An attorney cannot tell you what specific change you need to make, as we are not engineers, all we can tell you is the change needs to be a major material improvement in function of the item. So you need to determine how this change you propose makes a major improvement on the design.
Customer: replied 9 months ago.
thanks for your message.
the main problem is that the current Patent claims:8. The non-lethal arrow of claim 7, wherein the foam tip is generally cylindrical in shape.
9. The non-lethal arrow of claim 7, wherein the foam tip is generally hemispherical in shape.If my design use " the foam tip is generally cylindrical/hemispherical in shape."Is that a infringement?I'm not sure about this because the cylindrical/hemispherical shape has been used for more than 30 years, but this Patent claims it.
Expert:  Law Educator, Esq. replied 9 months ago.
thank you for your reply.
Yes, it could be indeed infringement as they are so close and no actual design improvement, just a change of shape. Remember, these cases are based on impressions of the person looking at the two design and there is no bright line test for infringement. They are very close though and close enough to say no significant difference exists. So yes, I would consider their claim is highly defensible.
Customer: replied 9 months ago.
if I design the foam tip in a square shape, is that a infringement?the word "generally" makes me confusing.
Expert:  Law Educator, Esq. replied 9 months ago.
Thank you for your reply.
Generally is all we can say, because patents are not an exact science in determining infringement, it is a very subjective type of examination. What one examiner may say is infringement another may say is not.
The square head could arguably be an improvement arguing that a square gives more surface area.

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