You have to first recognize that a patent does not give you the right to do anything, other than exclude someone else from practicing your invention. Therefore, you may have a patent on your "improvement," but may still infringe the patent of someone else. The proper question to ask is does your improved product infringe the other patent you mentioned. You'll need good counsel to answer that question. Whether your improved product is patentable is a separate and independent question. Hire a good patent attorney!
Whether your improvement is "different enough from the other [patented] product" to avoid infringing the other patent is a question that will require further investigation. It will require a comparison of your improved product with the claim(s) in the issued patent. It may also require an analysis of the prosecution history of patent. You will need to consult with a patent attorney who can then render a freedom-to-operate or clearance opinion on the patent in question.
This answer is for informational purposes only. It is not intended as specific legal advice regarding your question. The answer could be different if all of the facts were known. This answer does not establish an attorney-client relationship.
Yes, it's counterintuitive, but it's often possible to get a patent on an improved version of someone else's patented invention and still not have the right to sell that product without a license from owner of the first patent (at least, until that patent expires or is found not to be enforceable). And similarly, the owner of the first patent wouldn't have the right to sell your improved version without a license from you.
The scope of protection of a patent is defined by its set of granted CLAIMS. If your product is found to infringe any one (or more) of the claims, then you'd need a license from the owner in order to make, use, sell or import it into the United States. And I have to reveal that the task of "construing" a patent claim is so arcane that even the judges who do it most frequently (at the Court of Appeals for the Federal Circuit) don't always agree as to the fine points.
If you are talking about a real business with a real product, you'd best be advised to find a patent attorney you have confidence in and get a "freedom to operate" opinion.
This posting is intended for general education and isn't "legal advice." It doesn't create or evidence an attorney-client relationship. You are encouraged to engage an attorney in the pertinent jurisdiction for confidential legal advice on matters of any importance. -Gerry J. Elman, J.D. Elman Technology Law, P.C. Swarthmore, PA www.elman.com
No one can answer your question without reviewing the patent that covers the already-existing product and your improvement to that product.
As a general rule, it's unlawful to sell a product that merely adds one or more elements to an already-patented invention.
For example, if Invention X consists of Elements A, B and C and someone adds to that invention some new Element D then while that second Invention Y may be patentable [or even patented] it still cannot be lawfully sold without a license from the owner of the patent that covers Invention X. Invention Y would infringe the patent covering Invention X because Invention Y contains each and every Element that makes up Invention X.
There is always more to it, however. If, for example, Invention Y combines Elements A and B differently than does Invention X then perhaps Invention Y would NOT infringe the patent covering Invention X. Again, these questions cannot be answered in the abstract.
One last note: It is sometimes worthwile to patent Invention Y even if that product cannot lawfully be sold without a license because the grant of that patent STOPS the manufacturer of Invention X from itself making and selling Invention Y. For the manufactuer of Invention X to take commercial advantage of the Element D improvement to Invention Y the manufacturer would have to acquire a license from the person owning the patent covering Invention Y. That scenario is quite common -- in patent parlance, the patent for Invention Y is a "blocking patent" because it blocks the R&D and product improvement efforts of the company that makes Invention X.
You need to speak with your own patent attorney. You should also read a few books on patent strategy [visit the link below].
The above 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.
Yes, you can. However, if there is an valid, existing patent on your underlying technology then you may need to get a license to practcie your improvement patent. You may want to have an attoreny examine that underlying patent more carefully to see what is the point of novelty, i.e.d, the improvement which resulted in the patent being granted by the PTO. If your patent avoids that point, or if the patent is likely to be found invalid in court or upon reexamination at the PTO, then you may not need a license. Good luck.
Q:"Assuming this is patentable, (is non obvious and there is no prior art for) is this different enough from the other product to be able to sell the product after it is patented? "
A: It is not the other product that it has to be different from, it is any valid patent claims of the patent on the other product and the patent claims of every other valid patent (there are millions). You need a patent attorney to advise you whether or not you are different enough from such claims. It may be a simple task for a patent attorney, but likely will be a complicated and expensive clearance to do. Without detailed information, we here simply don't know and cannot tell you. We can, however, tell you that you need to get such an opinion, especially when as here, you know there is a patent on the product which you improve.
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.