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Patent on a product that exists?

jalaembarks's Avatar

I’m sure the answer to this question probably exists on the site somewhere but I’ve had a hard time tracking it down. Can someone tell me if you can patent a “creation” that is being made by someone else but that doesn’t have a patent itself? If so, is there a “rule of thumb” for altering the product enough to allow for a patent?

Thanks in advance, and I apologize in advance for my lack of knowledge in this area.

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williamj's Avatargold

J. Smith,

Patents on product improvements are done all the time but it is up to you to demonstrate that your idea is actually different, has not been “taught” (something I don’t fully understand myself) unique and unexpected. And it must also get around prior art. Not an easy thing to do.

I’m sure someone with more knowledge than I will chime in with more pertinent information and correct me as needed.

Welcome to EN and the EN forums, best of luck

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awildx's Avatargold

If you try to patent something that already exists (whether it has a patent or not), you will need to modify the product, method of use, and/or method of manufacturing enough to make it your own.

The prior art of something already patented or being produced stands in your way, but it isn’t impossible. In fact, there’s almost 50,000 patent results on Google Patents for “bottle openers.” So it’s not like the first person ever got the patent and nobody else could, they all just had to modify the idea somehow, in a “non-obvious” way. Non-obvious meaning you can just change the color of a bottle opener and expect to be granted a patent. Hope this helps.

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chicagoinventor's Avatarg8_badge

Your idea needs to pass the novelty test, that is it has to be significantly different from the previous patent. There is also something called a new use patent, you can have the same product but it is used in a new, novel way. For example, Melamine foam existed for decades and was largely used as sound proof insulation. BASF, the manufacturer, discovered that you can use it to clean your home and got a patent for the new use. They have made a fortune selling Melamine under the Magic Eraser brand.

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awildx's Avatargold

Whoops, after reading Franks reply, my reply should have read “can’t”

" Non-obvious meaning you “can’t” just change the color of a bottle opener and expect to be granted a patent. Hope this helps."

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speedbump's Avatar

J the following is NOT intended to be legal advice but I’m just stating what I’ve read and been told concerning your question. Every case depends on the details but IMO there are certainly some things you can and can’t do. Others may have different views.

You asked…. If you can patent a “creation” that is being made by someone else but doesn’t have a patent itself?

I think the short answer would be no if someone has something they make and I’ll assume are selling you wouldn’t be able to patent their creation. For you their creation would be seen in the eyes of the US patent office as being prior art and prevent you from getting a patent since this creation was already being made by someone else before you filed your patent. Even though you would be the first to file the creation would be classified as in the public domain. The person who created item would have a short window in which they could make and sell their creation and still get a patent.

Can you change something enough to make it novel and non obvious and get a patent …. the answer would be yes but that can be a hard sell when you try convincing the patent office/ examiner your new creation is novel and non-obvious. Every case is dependent on the details and to make an informed decision you would ultimately need to contact a patent agent or attorney.

Daniel …. I wonder how the BASF would have responded if you or I had been the one to use their melamine foam for a different purpose (magic eraser) . Even with a patent issued I’d guess you or I would have to defend our self in a infringement case. I suppose we’ll probably never know.

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chief's Avatar

I agree with others. This is a squarely prior art case, Patented or not has no bearing. Improvements made need to be patentable. That would the rule of thumb you seek.

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adampfeifle's Avatar

then why patent your invention if nobody can copy it legally?

even if they made changes in it, it would still not resemble your invention...

please help me understand.

-Adam 

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magurn's Avatar

Hi Adam!

We cannot provide legal guidance for you as it is not our policy. As always, I would recommend speaking with a patent attorney to get answers for your questions.

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keeztan's Avatar

As others have said, always consult an attorney.

Adam, I think what they are saying is you can't patent or protect a product as your own, if it already appears in the public domain. Many companies copy products that exist in the marketplace but do so knowing their product can not be protected. A product can be copied legally if not protected by a patent but ownership can not be claimed.

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whitneyk's Avatar

Can you apply for a Utility Patent using an existing technology that is already patented and used in a variety of products within other industries and in completely different products, but is not currently being applied to a particular industry and their applications?  

Additionally if I'm not mistaken you can apply for a design patent on an existing product if it differs enough from the current designs that are being used. Do I have this correct??

If so would anyone advise getting both a utility and a design patent in that case?  or just a utility?  

My worry is that as this specific industry (Like many others, tends to be cutthroat and filled with copycats)  what's the best way to halt others from using the technology within this specific industry for these products I'm redesigning, to protect myself from china or India or even other US based companies from using this technology and/or my designs?  I have heard of patented designs being ripped off by Asian based companies. 

thank you for any sound feedback!  
whitney

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donkelly's Avatar

EPIC:

Your inventive saga describes 3 distinct events ...each of which is toxic to subsequent patent application filing more than a year downstream of any such event.  Specifically:  1. The invention was in public use and/or on public display; .2. The invention was offered for sale; 3. The invention was sold.   

At this point, you certainly could present the product/process to manufacturers/distributors, but they would be under no obligation to honor any assertion that you hold intellectual property rights to the product/process that would convey with a licensing deal. On the other hand, you surely have useful and likely marketable know-how.  And that’s a real plus.  

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swbrummitt's Avatar

Adam wrote:

then why patent your invention if nobody can copy it legally?

even if they made changes in it, it would still not resemble your invention...

please help me understand.

-Adam

??? Is that really the question you intended to ask? I ask because 'THAT' is exactly why you want a patent - So people can't copy it unless they pay you for the privilege! (For the life of your patent that is!)

You seem to be missing the big picture for the nuances. If your additions actually add a utility which IS patentable, then if it IS possible just produce that addition as a modular add on to their device.

However, if they want to retool a design change that makes your 'add on' unworkable, then there is absolutely nothing you can do about it! AND! Unless you have the money to defend an infringement of your patent, if they go to the trouble to retool, then they might even incorporate your design! You might possibly win an infringement lawsuit if you are rich enough to spend the rest of your days in court! 

Most of us are here just trying to make a living off of our own designs, and are not looking for a 'black hole' situation such as you have outlined! It just isn't worth the time to even think about improving somebody else's product! That is why it is NEVER a good idea to make one product dependant on another! What if they go out of business?

ALSO we as inventors need to acquiesce to the fact that some utterly fantastic inventions may actually cost US more to produce than the market will ever bare! I know people who have hooked their future to seeing their 'invention/baby' make them rich, when 'IF' they were capable of even a little realistic critical thought they would have never spent $300,000 while ignoring those around them with common sense warning them about the brick wall they were about to hit!

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magurn's Avatar

Good morning to all!

A friendly reminder that it is the goal of our forums to remain respectful and kind to fellow participants.

Thank you for this consideration.

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kabuj's Avataree_badge

"NEW USE" related patents for existing items are granted all the time. Just remember it always has to meet the criteria of unique and non-obvious as prescribed by the USPTO.

Best of luck to all

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