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Explaining How Patentable Inventions Can Still Infringe Other Patents -- It's as Easy as Looking at a Wedding Cake

By Barbara E. Johnson, Esq.

Wedding cakes are big. Even small wedding cakes are big—big business, and big significance. From fascination with cakes gone wrong, at , to cakes as entertainment, viz. "The Cake Boss," a television show currently airing in Prime Time on The Learning Channel, a wedding cake can command attention in subtle and profound ways—and not only when it is commanding the attention of the persons exchanging vows during—or those paying for--the event that features its ceremonial cutting.

I went looking for an attention-getter, recently, when I needed to explain yet again the difference between patentability and infringement to a client. As every patent lawyer knows, many otherwise sophisticated clients or inventors, who easily grasp patentability criteria1 or Patent Cooperation Treaty national phase entry,2 inevitably go doe-eyed trying to comprehend that the manufacture, use, sale or offer for sale of their eminently important and patentable invention might infringe one or more valid patents owned by others.

Sometimes the straightforward, simple explanation of the difference between patentability and infringement can seem to be the best approach. In one of their monthly columns, "The Limited Monopoly™," Robert Gunderman P.E. and John Hammond ...

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