Q: How much does a product need to be enhanced or altered to be generally accepted over an existing patent over similar?
Example existing patent product has a chamber with aerosol release but our product has a chemical release with aerosol plus a paint that sprays out. Theirs simply says "aerosolized release of the chemical deterrent," which is relatively general.
A:
There are two related issues here:
(1) Can your product be made, sold, and used without infringing on your competitor's existing patent? And
(2) Can your product be patented over the existing patent?
With regards to (1), you need to take a look at the claims and ascertain if your product is encompassed by the claims. This is not a trivial exercise; you should consult with a patent attorney. From your description, I really cannot even guess at the answer. Sorry.
With regards to (2), you need to determine if your product is inventive (i.e., novel and not obvious) over the product described in the patent publication. There may be a way of claiming your invention that is inventive over the prior art. Again, it is hard for me to determine from your description if you do have a new product or not.
I wish I could give you a better answer.
A:
If you make an inventive improvement to any known device, you may be able to get a patent. The test is whether you are merely making an incremental improvement by making minor adjustments or a non-obvious change. Incremental = no patent, but a non-obvious change may get you a patent. Obviousness is judged through the eyes of someone with a complete skill set in making this type of product. That person is deemed to know everything that has been done in the field of that type of device and fixing that type of problem on other types of devices.
Non-obviousness sounds less glamorous than what other patent systems call an inventive step but it is the same idea.
I admit that this non-obvious to someone of ordinary skill in the art test is highly subjective. However, I work with the rules as I don't have power to change the rules. A good patent attorney can help make the sales pitch that what you did is inventive and not an incremental improvement. However, some patent examiners take a position that what you did is an obvious recombination of known tricks -- even if they find those tricks in different industries. Sometimes we can overcome the initial objections, but sometimes we cannot even as we believe that a different examiner may have viewed this close call differently.
This is not a satisfying answer but sometimes the truth is not that satisfying. But it is still useful to know how things work.
I hope this helps.
Kevin E Flynn
Justia Ask a Lawyer is a forum for consumers to get answers to basic legal questions. Any information sent through Justia Ask a Lawyer is not secure and is done so on a non-confidential basis only.
The use of this website to ask questions or receive answers does not create an attorney–client relationship between you and Justia, or between you and any attorney who receives your information or responds to your questions, nor is it intended to create such a relationship. Additionally, no responses on this forum constitute legal advice, which must be tailored to the specific circumstances of each case. You should not act upon information provided in Justia Ask a Lawyer without seeking professional counsel from an attorney admitted or authorized to practice in your jurisdiction. Justia assumes no responsibility to any person who relies on information contained on or received through this site and disclaims all liability in respect to such information.
Justia cannot guarantee that the information on this website (including any legal information provided by an attorney through this service) is accurate, complete, or up-to-date. While we intend to make every attempt to keep the information on this site current, the owners of and contributors to this site make no claims, promises or guarantees about the accuracy, completeness or adequacy of the information contained in or linked to from this site.
