I have an idea for a product, though it has a similar use to another patented product

Having the same use is probably not an issue as long as you solve the problem in different ways. For example, both a bicycle and a car have the same use (i.e., getting you somewhere) but they are very different inventions. The two issues you need to consider are: 1) does someone else have a patent that will prevent you from performing your method, and 2) does some public method that is out there already render what you are doing either not novel or obvious? If the answer to both is no, then you should probably go forward with applying for a patent.

Patentability and Infringement are two separate issues.

Since the other product is patented, you should verify that you do not infringe the patent. If the patent has expired, you cannot infringe it. If the maintenance fees have not been paid, you cannot infringe it. If the patent is still enforceable, you may want to have an attorney review the claims to verify that you do not infringe.

To get a patent your product would have to be (1) patentable subject matter, (2) not "anticipated" by the other patent, and (3) not "obvious" over the other patent (and possibly the other patent combined with other references). You indicate that the chemical and the application are the same, but the only difference is the method of use. So the question would be whether the method of use meets qualifications (1) - (3). If this were using amonia to clean glass, and the major difference was the way you rub, it would be difficult to get a patent. You should speak with a patent attorney before you invest heavily in this idea.

Good luck,
Karen Oster
www.oregonpatent.com

First question: Infringement

It does not matter if the product is not produced at this time, only that the patent is still in effect. Look at the claims of the patent. The claims are the individually numbered sentences at the end of the patent document (I'm assuming you have the patent in front of you - if not, enter the patent number into www.freepatentsonline.com). Determine if the claims describe what you are doing. If your method, or products, are not covered by the patent, then you are not infringing. You may want to get a freedom to operate opinion from a patent attorney to verify that you are not infringing, as it is very very tricky to actually do this comparison. Note: you do not need to get a patent yourself if all you are worried about is not infringing on the existing patent.


Second question: patentability

Impossible to tell over the internet. You need to formally speak with a patent attorney if you are serious about getting a patent.

**This post is for informational purposes only, and does not create an attorney-client relationship. Please do not send me any confidential information via email.**