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You would have to carefully read through their approved claims and look at each claim term and limitation in their claims.  If your product/device does not use every one of those features from their claims you may not overlap with their patent.

*Warning/Disclaimer:  This is a very complex area of patent law and my advice here is not legal advice.  Please check with a registered patent attorney for specific analysis of your situation. 
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. 
Patent Questions and Advice / Re: Is it possible to patent something more specific?
« Last post by Brad on January 05, 2021, 05:14:33 PM »
In the example you gave I would disagree.  If someone else claimed using metal_X and you are using metal_Y that would be just about impossible to get approved as a new patent because it would be routine or obvious to use a different type of metal and expect about the same results.

Your protein and enzyme idea is completely different.  We know in biology that these things can be unpredictable.  Just because a protein binds to A we do not know for sure if it will bind to B.   So in this example there could be something patentable with your discovery. 

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.

Patent Questions and Advice / What level of similarity determines the Freedom to Operate?
« Last post by iper on December 24, 2020, 09:40:44 AM »

If I patent a device that is quite similar to another device or a more specialised version of another device, does that mean that if I commercialize my device, I will have to obtain permission or pay royalties?

How different one device needs to be so that I can have the freedom to operate?

Patent Questions and Advice / Is it possible to patent something more specific?
« Last post by iper on December 21, 2020, 09:10:28 AM »

I was told by an IP lawyer that if a device is patented and it claims the use of a metal material, you can patent the same device and claim it to use a specific material, i.e. nickel.

Is that possible?

I am particularly interested in a device that has been patented to have any protein and enzyme which I am looking to patent to have a specific enzyme.

Patent Questions and Advice / Re: Novelty outside preferred embodiment
« Last post by Brad on August 11, 2020, 03:21:57 PM »
There are two (2) issues you have to worry about here:

1) If you make and sell a product will that violate their patent.

2) Is your product different enough to get your own patent approved.

For item (1), if there claim is broad enough to cover your product then you could likely infringe, even if their description suggests something else.   I understand this seems unfair but it sounds like they had a good patent attorney claim this broad enough to cover different variations.

For item (2), usually changing the invention and including something that is not found anywhere in their patent is enough to get your own patent approved.  However, if you are removing a step or component that is harder to get approved.   

Remember, even if you get your own patent approved that does not mean you are free and clear to start making the product as you could still be infringing on several older patents.   I wrote a post on this here:
Patent Questions and Advice / Novelty outside preferred embodiment
« Last post by iper on August 11, 2020, 12:43:26 PM »

In a patent, I read 'in a preferred embodiment, we have this characteristic [...]'

This particular characteristic is not explicitly claimed in the claims.

Could the same device be claimed with explicitly not having this characteristic?

In other words, when their description mentions something about 'a preferred embodiment', would it be novel to claim another embodiment without that specific characteristic?

Their claim is so broad that really prevents any other invention in the wider sector of this invention but they clearly have something specific in mind as they mention it as 'a preferred embodiment'. That specific thing that they have in mind is completely wrong and my invention does not have that (it is a property of a material and my invention may have the same material but definitely without that crucial for its function property).

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.


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?

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