Q: Can I patent a similar product that’s on the market that has a different feature that makes it unique??
A:
Yes you can. The telephone was first patented more than 100 years ago and people are still patenting improvements.
It is important to distinguish between patentability (the ability to get a new patent) and freedom-to-operate (the ability to make and sell your product in light of earlier patents).
For example--If the basic bicycle was on the market and covered by a patent, then you could seek several patents on your innovative mountain bike. Good chance you could obtain those patents. (So you would have patentability with respect to your new ideas)
However, to the extent that the unexpired patent on the basic bicycle had at least one claim that is broad enough to cover your fancy mountain bike, then you cannot sell mountain bikes until that basic bike patent expires unless you want to take the risk that you could invalidate that patent in court. (So you would not have freedom-to-operate). You could seek a license to the basic bike patent or maybe sell some of your innovations as aftermarket upgrades to the basic bike.
I hope that 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.
