Key Takeaways

  • You cannot patent an existing product as-is, but you can patent a novel improvement or unique combination.
  • A product must be novel, non-obvious, and useful to qualify for a patent.
  • Discovering a new use for an existing product can be patentable.
  • A thorough patent search is essential before drafting and submitting a patent application.
  • The patent application process involves preparing claims, drawings, and a detailed description of the invention.
  • Products protected by expired or non-renewed patents may offer opportunities for new filings.

Can I Patent a Product That Already Exists?

You may ask, "Can I patent a product that already exists?" It's possible that existing products are protected in other ways besides "patenting," such as through a trademark or as a trade secret. A product's function or design that has features considered public domain isn't strong enough to obtain a patent. Adding a category-changing innovation to the design could get you a patent. For example, a ballpoint pen that heats itself when the ink gets cold. It is still a pen, but there is a novel redesign.

Understanding the Limits of Patent Eligibility

While you cannot patent a product that already exists in its exact form, the law allows for patents on improvements, new combinations, or novel uses of known products. This hinges on whether your invention satisfies three criteria:

  • Novelty – The invention must not have been disclosed publicly before.
  • Non-obviousness – The change must not be something that would be easily deduced by someone skilled in the field.
  • Utility – The product or process must have a specific and credible use.

For instance, if you discover a new use for baking soda—like using it as an adhesive in a medical setting—you could potentially patent that new use even though the product itself already exists.

Why Patent a Product That Exists?

Patents on product improvements are done all the time, and it is up to the inventor to demonstrate that their idea is actually different, has not been "created," and is unique and unexpected. There are almost 50,000 patent results on Google Patents for "bottle openers." Obviously, after the first patent, there came several more. Subsequent patents just have to modify the idea in a "non-obvious" way.

What Makes a Product Improvement Patentable?

Even minor enhancements to existing products can qualify for patent protection if they provide a new and useful function. Considerations include:

  • Structural Modifications: Changes that affect the form or construction of the product.
  • Functional Enhancements: Improvements that deliver a new or superior performance.
  • Material Changes: Use of different or novel materials to solve a technical problem.

For example, modifying a wheelchair with self-adjusting wheels to navigate uneven terrain more smoothly could qualify for a patent if such a configuration hasn’t already been patented and is not obvious to a skilled practitioner.

Why Patent a Product When a Similar Patent Exists?

Distinguishing between merchandise and innovations is central to understanding patent regulation. A product could also be based mostly upon several innovations that are protected by patents. Simply because two products are comparable doesn't suggest that they cannot each be protected by a number of patents. For example, Apple and Microsoft can each create working methods that carry out comparable capabilities. Nonetheless, each product is protected by totally different patents that speak to the variations between the two innovations.

When Existing Patents Don’t Block Your Invention

Two similar products may both be patentable if they incorporate different inventive features. A prior patent might cover the core mechanism of a product, but if your version introduces a new control method or safety mechanism, it could be independently patentable.

Additionally, patents have lifespans—typically 20 years for utility patents. If an earlier patent has expired or was never renewed, the invention may fall into the public domain, freeing you to use it as a base for improvement.

Understanding patent claims is crucial. Claims define the boundaries of what is protected. If your improvement lies outside those boundaries, you may pursue a new patent.

Step 1

Search for current patents that are assigned to the company that makes the product you imagine is just like the one you want to defend. Current patents are available in the database of the U.S. Patent and Trademark Office, also referred to as the USPTO. Go to the USPTO website. Click on "Patents." A drop-down menu will appear. Choose "Search for Patents." When the search display appears, choose "Superior." Click on "Assignee." From right here, it is possible for you to seek out all of the patents related to comparable products.

Step 2

Decide which components of your product are different from those disclosed within current patents. Many products are protected by older patents. Distinguish which components of your product aren't disclosed within the patents held by the assignee of the comparable product. These components may be a patentable invention.

Explore New Uses or Combinations

Another path to patent eligibility is discovering a new use for an existing item or combining existing technologies in a novel way. Examples include:

  • Using an old chemical compound in a new medical application.
  • Combining a flashlight with a digital compass to create a unique rescue device.

This method allows inventors to build upon prior inventions in a way that the original patent didn’t foresee

Step 3

Draft a patent application that discloses each facet of learning about how to make and use your invention. Utilize an online service or lawyer that focuses on patent prosecution to help you distinguish one invention from another.

Step 4

Draft the drawings for your patent application. The USPTO has intensive guidelines that govern patent drawings. Most drawings need to be completed in black ink, though the USPTO does permit pictures and color in some circumstances when color is important for understanding the drawing. Many patent attorneys depend upon services specializing in making patent drawings.

Step 5

Draft claims that establish novel and non-obvious facets of the invention. An invention is described by its claims. This language may be tough to grasp as it describes the invention in very succinct phrases. For example, a draft describing a lightweight bulb might be stated as, "Equipment for producing mild light consisting of a filament, a method for coupling the filament to an influence supply and a glass casement." A specialized service may be utilized to help draft your claims.

Step 6

Submit your application, drawings, and claims to the USPTO. Submissions to the USPTO can be done at their website. You'll be able to submit paperwork, PDF information, and different file varieties. The USPTO fees vary depending upon the type of claims, and whether or not you're a small or large enterprise.

What If Your Idea Is Already Patented?

If your product idea appears to already be patented, consider the following:

  • Check Patent Expiration: Many patents expire due to non-payment of maintenance fees or end of term.
  • Review Licensing Options: You may be able to license the patent from the current holder rather than reinventing the wheel.
  • Focus on Design Patents: If the functionality is patented, consider whether a design patent (which protects appearance rather than function) could apply to your version.

Always consult a patent attorney to explore the safest and most strategic route forward before investing in development or marketing.

Frequently Asked Questions

1. Can you patent something that already exists but is used differently?Yes, if the new use is novel, non-obvious, and serves a useful function, it may be patentable.

2. What if the product is no longer patented?If a patent has expired or was abandoned, the product may be in the public domain and open for use or improvement.

3. Is improving the design of a product enough to get a patent?Possibly. If the design changes are new, non-obvious, and functional, you may qualify for a utility patent. Aesthetic changes may qualify for a design patent.

4. Can two similar products both be patented?Yes, as long as the differences between them are inventive and not obvious to someone skilled in the field.

5. Where can I search for existing patents?You can search the USPTO database or Google Patents. Begin by identifying key features of your invention and see if they’ve been claimed in earlier filings.

To find help for submitting a patent, you can post your legal need on UpCounsel's marketplace. UpCounsel accepts only the top 5 percent of lawyers to its site. Lawyers on UpCounsel come from law schools such as Harvard Law and Yale Law and average 14 years of legal experience, including work with or on behalf of companies like Google, Menlo Ventures, and Airbnb.