Is a functional parameter in the first claim of an invention limiting?

[iper]

Hello

My invention is similar to another patent. That patent lists in the first claim that is is a 'filtering device'.

My device has similar embodiment but it is a 'diagnostic device'.

Would that enable me to patent my invention or since the embodiment is very similar, it won't be possible?

Just to give an example:

Let's say someone patents 'a human sitting device that consists of a surface on four legs'. This is obviously any chair where people sit.
Is it possible that I patent 'a storing device that consists of a surface on four legs'? This is obviously any rack/shelve where you can place things on for storage.

Thanks!

[Brad]

If your use of this as a diagnostic is new/different and unexpected you may have a chance of getting it approved as a new patent.

However, just because you have a patent approved does not mean you are "free and clear" to start making that device.  The original patent holder may be able to stop you from making or selling the device even if you found a new use for it.

For example, I cannot sell iPhones as paperweights (even if I was the first person to think of that idea) without violating at least one of Apples 1000s of patents on the iPhone.