Houston, TX asked in Patents (Intellectual Property) for Texas

Q: if I have a similar idea, similar in function and apbut difference of materials used, can I apply/receive a patent on it

2 Lawyer Answers
Karima Gulick
Karima Gulick
Answered

A: You can but only if the improvement would not have been obvious to someone else skilled in the art. It would be difficult to patent the same idea, the same function and same application with a different material unless you can show that making it with that material would have been impossible in the past but you found a way to make it that is unique and non-obvious.

If you have any other specific questions on this or other intellectual property related matters, contact us through our site: kgulick.com

Kevin E. Flynn
PREMIUM
Kevin E. Flynn
Answered
  • Patents Lawyer
  • Pittsboro, NC

A: One way to look at patents is that some inventions add functionality to the product and some inventions improve the process of making the product. The first category gets most of the attention in the press, but the second category can be important to manufacturers. If your have found a way to use a material that is lower cost than the traditional material used and you needed to overcome a technical barrier to use this material, then you may have an opportunity for a patent.

The bar for getting any patent on any idea is a high one as your idea needs not only to be new ("novel"), it it needs to be something that would not be an obvious recombination of all relevant work to address such problems done throughout time anywhere on the planet. A person with the right set of skills to design your product is deemed to have all this material in front of him/her and knows all languages so can read all the material. The questions of what is obvious is rather subjective. This is where the patent attorney and patent examiner tend to disagree initially. With luck the patent attorney can convince the patent examiner that your choices were not obvious ones to make, even to a highly skilled and infinitely informed hypothetical person of "ordinary" skill in the art.

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