Patent on existing product

[Jack Green]

Hi,

Can someone tell me if you can patent an invention that is being made by someone else but that doesn’t have a patent itself? If so, is there a “rule of thumb” for altering the product enough to allow for a patent?

Thanks.

[Jess Naylor]

Hello,

If you try to patent something that already exists (whether it has a patent or not), you will need to modify the product, method of use, and/or method of manufacturing enough to make it your own.

The prior art of something already patented or being produced stands in your way, but it isn’t impossible. In fact, there’s almost 50,000 patent results on Google Patents for “bottle openers.” So it’s not like the first person ever got the patent and nobody else could, they all just had to modify the idea somehow, in a “non-obvious” way. Non-obvious meaning you can’t just change the color of a bottle opener and expect to be granted a patent. Hope this helps.

[Nick Bennet]

Your idea needs to pass the novelty test, that means it has to be significantly different from the previous patent. There is also something called a new use patent: you can have the same product but it is used in a new, novel way. For example, Melamine foam existed for decades and was largely used as sound proof insulation. BASF, the manufacturer, discovered that you can use it to clean your home and got a patent for the new use. They have made a fortune selling Melamine under the Magic Eraser brand.

[Theresa]

Every case depends on the details but IMO there are certainly some things you can and can’t do. Others may have different views.

I think the short answer to your question would be no if someone has something they make and I’ll assume are selling you wouldn’t be able to patent their creation. For you their creation would be seen in the eyes of the US patent office as being prior art and prevent you from getting a patent since this creation was already being made by someone else before you filed your patent. Even though you would be the first to file the creation would be classified as in the public domain. The person who created the item would have a short window in which they could make and sell their creation and still get a patent.

Can you change something enough to make it novel and non obvious and get a patent? The answer would be yes but that can be a hard sell when you try convincing the patent office/examiner your new creation is novel and non-obvious. Every case is dependent on the details and to make an informed decision you would ultimately need to contact a patent agent or attorney.

[Jack Green]

Thank you all for your feedback on this. The reason I was asking isn’t because I want to patent something that already exists, but rather the other way around.

I have an idea which I’m not sure if I should patent because I don’t know how easy it would be for someone else to change something minor and get a patent for it as well. I guess I’ll have to see a lawyer for this.

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