Atlanta, GA asked in Patents (Intellectual Property) for Georgia

Q: I have a idea and I see a patent that is similar but isn't used the same as in a everyday usage. Can I patent my idea?

The idea I have if for a every day usage but the patent in mind is for medical usage. My idea still theoretically does the same but uses different materials and also it has usage after sporting events and after walking or working daily. Before I start the patent process I wanted to know if my ideas might hold merit to patent or if I should pursue another idea that I have. Cause I have not seen anyone use this idea before. But upon searching different patents came across a idea that is almost the same but it isn't the same.

2 Lawyer Answers
Peter D. Mlynek
Peter D. Mlynek
Answered
  • Patents Lawyer
  • Moorestown, NJ

A: It is hard to really say one way or another without knowing more about it. If your product is the same (or close enough) as the patented product, but you want to use it for a different purpose, then you will likely not be able to get a patent for it. But if you tweak it enough, for example, redesign it from scratch or redesign the existing product enough, so that it is optimized for the daily use as opposed to medical use, then you could get a patent. You really should talk to a patent attorney about it.

You also need to worry about not infringing the existing patent. Just because you will produce it for non-medical use, does not mean that you will not infringe on it.

But I think that I see a bigger problem at play here. You do understand that patents exist only to make money, right? The way that you make money is by making and selling your product. It makes sense to get a patent if the monopoly premium is several times more than the cost of the patent. You do not make money by patenting your ideas; it is not like someone is going to see your patent, call you up, and send you a big check. You have to make money by running your business. If you do not have a business plan which you are pretty certain based on market data that will generate a revenue of several hundreds of thousands of dollars per year, then spending money on getting a patent is not worth your time. The patenting strategy needs to follow your business plan, your production plan, and your marketing plan. If you don't have that, then all you will do is give your patent attorney about $30,000 for a piece of paper that is worthless to you.

Good luck!

Kevin E. Flynn
Kevin E. Flynn
PREMIUM
Answered
  • Patents Lawyer
  • Chapel Hill, NC

A: Put another way, a patent is a fence around your orchard that keeps people from stealing apples. If you do not have anything of value within the fence, then it is not clear why you built a fence.

Secondly, the patent office cares very little if you bring a solution from one field and use it in another field if what you did was logical and would not surprise anyone. The use of a medical device used for people for surgery on animals would not get patent protection unless you had to make some special modifications so that it worked for animals and those modifications would not be simple adjustments for the differences in size of the patient.

Most things that get a patent take some trial and error and some work from folks with skills in engineering or sciences. There are exceptions to that rule but it you can think of how to do something in a few minutes, it is very possible that what you have thought up is not quite an inventive leap from what people already know.

I agree that a conversation with a patent attorney would be useful if you are serious about building a business that may rely on this patent to protect profit margin and market share by keeping out those who would copy your idea.

If you found this answer helpful, you may want to look at my answers to other questions about patent law are available at the bottom of my profile page at

https://lawyers.justia.com/lawyer/kevin-e-flynn-880338

Kevin E Flynn

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