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Can a new business process being patented for an existing service that is already patented?

Asked over 2 years ago - Livonia, MI

Business

I've had an idea for a service for about 4 years and now I want to get a patent, but I've found someone else already patented the exact same idea in July 2007 down to every last detail. I have no way of proving that I invented it first because I never patented it. However, the one difference between his idea and mine is that he plans to charge a fee to each customer using the service as his means for generating profits. In my idea, I have devised a process that would allow me to offer the service for free to all customers, and rather generate my profits in another way. I obviously cannot tell my method, but it is 100% legal, and I wanted to know if I could patent at least this alternative business process for the same service, and thus provide the same service, but offer it for free?

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Attorney answers (3)

Stephen Thomas Scherrer

Reputation Level 8

Answered over 2 years ago. Patent Application Attorney in Crystal Lake, IL.

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Without knowing what the particular business process is, it is difficult to make any judgments whether your business process is patentable over the prior patent.

What strikes me from your description - is your statement that the patent in 2007 patented the "same idea . . . down to every last detail." To me, this indicates that you will have a very difficult time convincing the patent office that your invention is not "novel" or "non-obvious" in view of what is described in this prior patent. (These are the two standards your useful invention must overcome - whether it is novel in view of the prior art (does a single prior art reference disclose each and every element of your claimed invention) or whether your invention is "non-obvious" in view of the prior art (is your invention "obvious" in view of one or more prior art publications).

So, perhaps you would be able to include the revenue generating element in your application and demonstrate that you are entitled to a patent based on this difference. Off hand (and without knowing more), it appears like an uphill battle.

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Daniel Nathan Ballard

Reputation Level 18

Answered over 2 years ago. Business Attorney in Sacramento, CA.

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The only way to determine if your method is patentable is to have a patent attorney compare your method with the patented method you've identified (and all other similar patented and non-patented publicly-known methods).

In addition, your patent attorney will have to evaluate whether your method is patentable at all -- note that since 2007 the law regarding the patentability of methods of doing things has dramatically changed resulting in far fewer methods now being patentable.

Big picture: patenting anything is expensive and only makes sense (for the most part) if you want to the reputation bump of being able to claim you're a patented inventor, if your business requires you to patent your method because otherwise a competitor can enjoin you from continuing to practice it, or if you have the extraordinary financial resources to enforce your patent against infringers. Otherwise seeking patent protection makes no sense. Good luck.

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Jeffrey Thekdi Gedeon

Reputation Level 9

Answered over 2 years ago. Patent Application Attorney in Novi, MI.

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In addition to the previous comments, it is important to note that the ability to patent business methods may limited. This is currently a gray area of patent law with at least one prominent case currently before the Supreme court. Depending on how the court decides, it may be very difficult if not impossible to get a patent on a business method no matter how different it is from what was done before. In general though, business methods are currently disfavored, and the patent office will require that any disclosed method be tied to a particular machine or system designed to carry out the method. While it is common to attach business methods to computer systems that are designed to implement the method, no one can say with any certainty whether these patents will be grantable in the future.

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