You stumble upon a remarkable product and immediately consider selling it. But before diving into that venture, you wonder if it’s possible to obtain a patent for an existing product. Let’s delve into this question and explore the possibilities.
Who has the Right to Patent an Existing Product?
According to US patent laws, only the inventor of a product can obtain a patent for it. An inventor is defined as someone who contributes to the conception of the invention. Since you did not play a role in the creation of the existing product, you cannot be considered the inventor.
However, if you make improvements to the existing product, you can be recognized as the inventor of those enhancements. Consequently, you may be eligible to secure a patent for the improvements.
Why is Patenting an Existing Product Challenging?
There are two primary reasons why patenting an existing product is not feasible. Firstly, the product is not new or novel, which is a requirement under the US Patent Laws. Secondly, patents are exclusively granted to new inventions. When you submit a patent application, you must disclose any existing products that could be considered prior art. This disclosure informs the United States Patent and Trademark Office (USPTO) about the existence of the product, potentially undermining your chances of obtaining a patent.
When the examiner reviews the existing product during the patent application process, they will likely reject your application on the grounds of it lacking novelty. Consequently, you cannot secure a patent for an existing product.
What Can Be Patented on an Existing Product?
Any improvements you conceive for an existing product have the potential to be patented. In this case, you would be recognized as the inventor of the improvements. To qualify for a patent, these improvements must not only be new or novel, but they should also possess a nonobvious quality.
Examples of patentable improvements include new features and enhanced functionalities that offer unique advantages compared to the original product.
To determine if a specific improvement is eligible for a patent, consider whether it adds new benefits to the existing product. For instance, does the improvement make the product easier or more cost-effective to use? If it does, it’s worth exploring the potential for securing a patent. Conducting a patent search of your own might also be beneficial. Check out my 7 steps to take before spending money on a patent for more guidance.
Can a Product Assembled from Off-the-Shelf Parts Be Patented?
Many inventors assume that assembling a product from off-the-shelf components renders it unpatentable. Although each individual off-the-shelf product may not be novel, the combination of those parts can result in a new product. Therefore, it is possible to secure a patent for a product assembled from off-the-shelf parts, as long as the combination itself is both new and nonobvious.
Is Patenting a New Use for an Existing Product Possible?
In some cases, a new use or method for an existing product can be patented. However, for it to be considered patentable, the new use must exhibit a nonobvious quality.
Let me clarify this further.
While many people tend to think of a product as a whole when considering patentability, patent law is more intricate. Various aspects of a product can be eligible for patents. For instance, you can secure a patent for the assembly process, a crucial replacement part (like a toner cartridge), the product’s usage instructions, or its installation method.
However, most of these aspects are typically obvious when you examine the invention. For example, the simple act of using a screwdriver to tighten or loosen screws is inherently understood.
Other obvious uses of a screwdriver, such as employing it as a mini pry bar or a pin pusher, are not patentable.
Nevertheless, nonobvious uses can indeed be patented. For instance, using a screwdriver as a handle for a spoon would be considered a nonobvious use and may qualify for a patent.
Selling Someone Else’s Patented Product: Can You?
Manufacturing and selling someone else’s patented product without permission constitute patent infringement. Engaging in such activities can lead to legal liability. However, you can legally sell another person’s patented product if you obtain a license from the patent owner or find a way to avoid infringing on their patent rights.
To determine if a product is patented, you can:
Conduct an assignee search to identify the patent owner and the patents they own. You can use the operator AN/xxxx (with xxxx being the name of the business that sells the product) on the USPTO’s FPO (Full-Text and Image Database).
Look for patent markings on the product itself. Under US patent laws, patent owners frequently mark their products with patent numbers to protect their rights. If no patent number is found on the product, the patent owner cannot collect damages until they provide you with actual notice of infringement. To locate the patent marking, refer to my article on Patent Marking: Everything you wanted to know.
By identifying the relevant patents, you can review them to understand the extent of the patent protection they offer. If your competitive product falls outside the scope of the patent protection, you can safely sell it. Learn more about determining the scope of patent protection and avoiding infringement in my article Avoiding Patent Infringement.
Alternatively, you can legally sell another person’s patented product by acquiring a license. This license grants you permission from the patent owner to manufacture, use, sell, offer for sale, or import the patented product into the United States. Typically, a royalty payment is required to secure such a license. However, once obtained, you can sell the patented product without fear of infringing upon the patent.
How to Obtain a Patent?
To secure a patent, you must conduct a thorough patent search. If your invention doesn’t match any existing patent documents, you can proceed with applying for a patent through the United States Patent and Trademark Office (USPTO).
How to Conduct a Patent Search?
For an effective patent search, I recommend following the 7-step strategy outlined by the USPTO. You can refer to my guide on Conducting a Patent Search for detailed instructions.
Applying for a Patent
To initiate the patent application process, you need to prepare and submit a patent application to the USPTO. I offer eight valuable tips for writing a strong patent application in my article 8 Tips for Writing a Patent Application.
Remember to ensure that your application adheres to the necessary guidelines and provides all the required information.
By following these steps diligently, you can increase your chances of securing a patent for your invention.
Visit Garrity Traina for more insights on patents and intellectual property.
Now that you’re aware of the ins and outs of patenting an existing product, you can proceed with confidence in your entrepreneurial endeavors.