Mcallen, TX asked in Patents (Intellectual Property) and Intellectual Property for Texas

Q: Can I patent a similar product that’s on the market that has a different feature that makes it unique??

1 Lawyer Answer
Kevin E. Flynn
Kevin E. Flynn
  • Patents Lawyer
  • Chapel Hill, NC

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

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