El Sobrante, CA asked in Copyright, Intellectual Property and Patents (Intellectual Property) for Ohio

Q: If my idea of invention is already patented by another individual yet not invented, what are my options? Thank You!

I recently discovered that my idea of invention had already been patented by another individual 5 years ago. However, the product is not available to this day and I passionately wish to bring this invention to life. What are my options?

2 Lawyer Answers
Joseph Jaap
Joseph Jaap
  • Cincinnati, OH
  • Licensed in Ohio

A: You can contact the patent owner and negotiate a license from the patent owner to produce the product or purchase the patent rights. Consult a local patent attorney.

Peter D. Mlynek
Peter D. Mlynek
  • Intellectual Property Lawyer
  • Moorestown, NJ

A: Well, this sort of thing happens every day. Without knowing the specifics it is kind of difficult to comment, but let me just offer a few pointers.

(1) There may be a couple of explanations why a patented product is not available for sale. One, manufacturing it, marketing it, or selling it, is just not very profitable. Although you may be in love with the product, ask yourself if it really will be something that the market desires and something that would be profitable to make and sell. Or better yet, ask your friend or spouse who does not share your passion for it. Second, if it really is wonderful, it is possible (though typically rare) that the patent owner does not want to make and sell the product because the owner makes more money on a different competing product.

(2) Many individuals (as well as big companies) spend money and effort to get a patent, but when they try to put it into the marketplace, they find out that it is simply not marketable or profitable; they abandon the patent, and go do something else. Before you do anything, take a look if the patent is enforceable. Have the maintenance fees been paid? Put in the Application No. and Patent No. into the database https://fees.uspto.gov/MaintenanceFees

(3) You can license the patent. Before you do that, have a patent attorney take a look at the product that you want to market and the patent, and give you an opinion as to whether your product would infringe or not, and whether you really need to license it or not.

Good luck!

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