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I have an idea for an invention but there is a similar product which already has been patented

Lafayette, LA |
Filed under: Patent infringement

Would you be able to tell me if I could still go ahead with my idea even though its similar to the product that already has a patent

Attorney Answers 5

  1. Your idea/invention may be patentable if its new (novel) and not obvious over what has already been done. Having a similar idea/invention to another product may bring up the question of whether its obvious to make modifications to an existing product, in order to arrive at your idea/invention.
    A patent attorney on this site can advise you on whether you should file a patent application for your idea/invention and on how best to address the the obviousness issue.

  2. Yes. A patent attorney will be able to review the “claims” of the patent and compare them to the product that you want to market. You should be able to find a local patent attorney through this website. Although many patents have fairly broad looking disclosures, including the drawings, text, etc., it is the “claims” of the patent that define what it is that the patent covers. And to infringe the patent, your product would have to have every element listed in at least one of the claims. Of course, there are confusing nuances to this test, so you will definitely want an experienced patent lawyer to help you with this analysis.

    Good for you to have the foresight to look before you leap into potential patent infringement liability.

    The next question for you would be whether your product itself is patentable. If it is different in some important ways from the patented competing product, then you may want to look into this. Your patent attorney can commission a search of the prior art to help you decide whether it may be worthwhile pursuing patent protection of your own product.

    Best of luck.

    (949) 390-2717 - Of course there's more to it! Plus, we don't have an attorney-client relationship. This brief comment is for information only, and must not be relied upon as legal advice.

  3. As my colleagues note, you will need to have your own patent provide you with a "freedom to operate" opinion to determine if your product infringes any of the claims in the patent you've found -- and, in fact, any other patents that your own attorney will track down. Good luck.

    The above response is general information ONLY and is not legal advice, does not form an attorney-client relationship, and should NOT be relied upon to take or refrain from taking any action. I am not your attorney. You should seek the advice of competent counsel before taking any action related to your inquiry.

  4. Yes, any good patent attorney should be able to do a patent search and tell you that. Ask for a free initial consultation and call one of us. It needn't be in Louisiana. Patents are Federal law and the Internet makes remote lawyering routine nowadays. Looks for skill and experience more than location.

    Today is the 111th anniversary of a patent that gives you part of your answer, patent for which there was a similar prior product. This product became one of the most famous crackers in the world, a TRISCUIT. - US Pat No. 713,795 That tells you another thing. While the patent helps initial exclusivity, over the long run it will be the trademark that gives the huge bulk of the value. The patent gives the time to establish the reputation of the brand, and the brand makes the money.

    Select a patent lawyer that knows how to create lasting value.

    I am not your lawyer and you are not my client. Free advice here is without recourse and any reliance thereupon is at your sole risk. This is done without compensation as a free public service. I am licensed in IL, MO, TX and I am a Reg. Pat. Atty. so advice in any other jurisdiction is strictly general advice and should be confirmed with an attorney licensed in that jurisdiction.

  5. Patents do not protect mere ideas. They protect tangible, useful inventions that are novel and non-obvious when compared to pre-existing products and articles describing them (which we sometimes describe as prior art). Before you could proceed with your proposed invention, you would need to retain legal counsel to conduct a "clearance" analysis---you need to know whether you can make and practice your invention without violating patents and other IP rights owned by others. You also need to know whether you need licenses from third parties in order to make and sell your invention. If you are serious about moving forward, you need to retain IP counsel to conduct a clearance analysis---and perhaps to assist you in obtaining a licenses which you might need from other patent owners.

    This is especially important for you here because you admit that your invention is "similar" to a product that is patented. Even if your invention improves upon the existing product, it is quite possible that you cannot practice your improvements without getting a license of patents covering the existing product. Thus, if you want to pursue this matter, you need to retain IP counsel ASAP.

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