Patent and Invention Help Forum

Patent and Inventing Discussion => Patent Questions and Advice => Topic started by: Kadin on October 29, 2017, 07:13:37 PM

Title: Improving a patented device
Post by: Kadin on October 29, 2017, 07:13:37 PM
Hi,
I have been developing a device that improves upon an already patented product.  I don't think the product is really worth spending the time and effort to get patented as it is for a very specific niche market. 

What I am wondering is if I could make my improved version of this product and sell it without getting a patent or provisional patent or if that would be infringing upon the current patent that is in place.

I'd really appreciate any advice you all might have for me!

Thanks,
Kadin
Title: Re: Improving a patented device
Post by: Brad on October 30, 2017, 07:22:08 AM
I have to be very careful here as this is NOT LEGAL advice as I have no idea what product you are talking about.

In general, if there is a patented product and you make a minor improvement that may not be enough of a change to get around the original patent.  You would have to (1) make sure the original patent is still active and enforceable (if its more than 20 years old it may be expired) and (2) compare the claims of that older patent to your product to see if your improved product still copies each feature from their broadest claims.


For example, if I added a non-slip back to an iphone and started making iphones in my garage and selling them that is likely not enough to get around Apple's 1000s of patents covering different aspects of the iphone and they could likely enforce their patents against me.

You would really need to hire an attorney to review your product and compare it to the claims of any issued patent on the original product and give you a "freedom to operate opinion".

On the other hand, if its a very niche and small market and it does not make sense for a company to spend tens or hundreds of thousands of dollars on a patent enforcement suit then some people may make the business (risk vs. reward) decision to just proceed without doing a proper freedom to operate search knowing full well you may later get in trouble.