Is it novel if the same part/material is used in a different way?

[iper]

Hello

A device I invented is unfortunately the same as another one that had been patented.
I am trying to differentiate myself but it is a rather simple apparatus and it is quite difficult.

However, there is a major difference in the function of the device and I wonder if I can claim a novel apparatus based on its function and not its composition.

For example, let's say you have a device that has specific molecules A inside. My invention is pretty much the same device with the same molecules A.

However, in the first device, the molecules are used to bind other molecules B while in my device they are used to convert the other molecules B.

The apparatus cannot be differentiated but the function is different. Would that be a novel patentable device?

If yes, would that be claimed as an apparatus patent or a function patent? And would I need to pay loyalties to the earlier investor for selling such device?

Thanks!

[Brad]

In theory you can get a patent on a new use of a known device.   In practice these are near impossible or very expensive to get approved.   I have never really seen it done successfully.   So trying to get a patent on the device itself may be difficult even if you have a new use for it.

You can also try to write your patent as a method/process instead of as a device.  You can get method and process patents approved as long as they are new and the non-odviouss.  If it would be somewhat routine or odviouss to use the old device in the way you are suggesting then that would also make this challenging.

No idea if you would owe royalties or not but in general if they have an issued and valid patent on the device and you are making or selling that same device (even for a different purpose) you are likely violating their patent so be careful there.