Can I improve a product that already has a patent? 10 Answers as of May 28, 2013

I would use the same scientific and technological principles but apply it to something else.

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DANIEL NESBITT
DANIEL NESBITT | Hasse & Nesbitt
Generally, yes. However, patentability requires novelty (at least some feature or component that is new), non-obviousness, and utility (usefulness). The non-obviousness of a change typically hinges on the "predictability" of making the change or obtaining the benefit of the change.
Answer Applies to: Ohio
Replied: 12/23/2012
Michael M. Ahmadshahi
Michael M. Ahmadshahi | Michael M. Ahmadshahi, Ph.D., Esq.
Yes you can but you must make sure that your product does not infringe the patent. This is commonly referred to as the Design Around an existing patented device.
Answer Applies to: California
Replied: 12/19/2012
Banner & Witcoff, Ltd. | Ernie Linek
Yes, you might be able to do that - as long as your invention is (1) novel (2) useful and (3) not obvious. US Patent law permits the patenting of inventions for "any new and useful process, machine, manufacture or composition of matter, or any new and useful improvement thereof."
Answer Applies to: Massachusetts
Replied: 12/19/2012
Ochoa and Associates
Ochoa and Associates | Susan Ochoa Spiering
Improvements can be patented provided they meet the requirements of patentability: new/novel, non-obvious, and useful.
Answer Applies to: Texas
Replied: 12/19/2012
Eminent IP, P.C.
Eminent IP, P.C. | Paul C. Oestreich
Yes, of course! One of the underlying principles of our patent system is that in exchange for a limited monopoly, patentees must disclose how to make and use their inventions from the disclosure in the patent document itself. This implies that over time the wealth of publicly available knowledge increases. In fact, virtually all newly granted patents are for inventions that improve upon existing products which may or may not already have a related patent. The question now becomes what do you intend to do with your improved product, i.e., "something else"? It is not clear from your statement of the question whether or not you are simply planning on seeking a patent for "something else", or if you wish to make, use and sell "something else". Those are two different inquiries. The first inquiry relates to patentability for "something else". More particularly, the issue is whether "something else" is useful, novel and nonobvious over what others have done in the past (the prior art). If so, you may be entitled to a patent. So, your next steps would be to commission a "novelty" or "patent" search to see what your likelihood of obtaining a patent might be and then filing a patent application if the search is favorable. These are both services for which you should engage a patent attorney or agent. The second inquiry relates to infringement, more particularly whether you can make, use and sell your "something else" without having to take a license from the owner of the "patent" for the "product". It may be the case that your "something else" falls within the claims of that patent or some other patent that has relevant claims reading on "something else". So, a prudent business person would do further investigation, for example, you should consult with a registered patent attorney to perform a "clearance" or "right-to-use" opinion that will give you some confidence that your "something else" does not infringe any valid patent of another. If there is some arguable infringement, you may need to seek a license from the patent owner or risk an infringement lawsuit.
Answer Applies to: Utah
Replied: 12/18/2012
    Law Office of Kirk Buhler
    Law Office of Kirk Buhler | Kirk A Buhler
    Yes, but you may be required to pay the owner of the patent a royalty if your product infringes on the patent. You may also be able to get a patent on your improvement if the improvement is not an obvious improvement.
    Answer Applies to: California
    Replied: 12/18/2012
    Tran & Associates | Bao Tran
    You certainly can. Consider using products such as ProvisionalBuilder from PowerPatent to apply for Provisional Applications first, and then commercialize it. With Provisionals, you have 1 year to pay the fees to convert to Utility Application Bao
    Answer Applies to: California
    Replied: 12/18/2012
    Webb IP Law Group
    Webb IP Law Group | Jason P Webb
    Most patents are improvements on older technology. Some are also applications of scientific principles already applied in one kind of product but then applied to a new kind of product.
    Answer Applies to: Utah
    Replied: 12/18/2012
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