Can An Existing Product Be Patented?

July 29, 2022

Patents grant their owners exclusive rights of usage of their invention. Patentees enjoy monopolistic powers over their invention which prevents others from using, imitating, or selling it without permission from the patent holder. So, can you patent something that is already being sold? The answer is yes. While it is impossible to patent an existing product, it certainly is feasible to patent an improvement over an existing product. Below we discuss how non-obvious improvements to an existing product can be patented.

How To Patent An Existing Product

Can I produce and sell an already patented product? Seeking a patent on an existing product is not feasible as:

The inventor alone enjoys rights over their invention.
An existing product is not a ‘new’ or ‘novel’ invention

In short, if you file a patent for an existing product the examiner will reject it on the above grounds. The trick is to design an improvement on an existing product and then file for a patent. This way you become an inventor of the improvement and can legitimately file for a patent.

What Improvements Can Be Patented?

If you are looking to patent an improvement on an existing patented product, then the following pointers must be kept in mind:

You must be the inventor of the improvement.
The improvement must be new or novel.
The criterion of ‘non-obvious’ is also applicable.

An improvement on a product may be in the form of new features or enhanced functionality that adds further value to it. It must be designed to make the product simpler to use or bring down its price.

Can I produce and sell an already patented product?

Yes, you can even patent an existing product based on the concept of ‘new use’. If you’re able to devise an entirely new and non-obvious way of using an existing product, that significantly differs from its present usage, then it may be eligible for a patent.

Steps to Patent An Existing Product

Run a search on the database of the U.S. Patent and Trademark Office (UPSTO) for current patents that are comparable to your intended invention. To run a search, on the UPSTO website click on Patents and select “Search for Patents” from the drop-down menu. In the search results that appear, choose “Superior” and click on “Assignee”. This will lead you to all patents that are related to comparable products. You may also refer to the 7-Step Strategy defined by the United States Patent and Trademark Office for conducting preliminary searches. The Patent and Trademark Resource Centers (PTRCs) offer training on the nuances of conducting the search.
Figure components of your product that are not related to the patents revealed by the above search. If your invention has components that are not disclosed in any existing patents, then it may be a patentable invention. You can also examine the scope of patent protection available to a patented product to determine if your product falls within or outside the afforded scope. If it falls outside the protection offered, then you are eligible to sell the product without fear of infringement.
The next and most significant step is drafting the patent application. A patent application consists of a detailed written description of your invention. It is accompanied by an oath attesting that the application complied with existing patent rules. It is necessary to make a complete disclosure in the application since patent offices usually do not accept adding new information once the application is submitted.
Patent drawings are another vital element in the patent filing process. Comprehensive guidelines have been laid down by the USPTO for patent drawings that must be strictly adhered to. It is important to note that the drawings must be in black and white unless they fall under exceptional rules which allow colour illustrations. It is best to seek the guidance of expert illustrators specialising in patent drawings to lower the chances of rejection of the drawing.
Claims are crucial to an invention. It is important to draft claims that are able to distinguish the invention and emphasis its uniqueness. ‘Novel’ and ‘Non-obvious’ are the fundamentals that lie at the core of each invention and Claims help to bring out these aspects. Therefore, it is advisable to avail of specialised services for drafting in the correct manner and language.
Submission of all patent-related documents, i.e., application, claims, and drawings are the final step of filing. You will be charged a fee at the time of submission, which varies depending on whether the claim is being submitted by a company or individual. All submissions are accepted online on the USPTO website.

Conclusion

The process of filing for an improvement is complex and prone to rejections. It is common for such applications to be refused in the first examination as the examiner may find that some claims in the patent infringe on existing patents. To overcome these rejections, one simply needs to differentiate over the prior art pointed out by the examiner. Once this is done, the application may be re-submitted for a second examination. Considering the intricacies involved in obtaining patents for existing products, it is best to hire a patent attorney to handle all the legal aspects.

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