We often get asked if people can you get a patent on an improvement to someone else’s existing product or patent? If your improvement is novel (new) and non-obvious then the answer is yes. Example improvements may include new elements that provide new functionality and that are non-obvious variants of the existing product.
What if the existing product is patented?
If the existing product or invention is covered by an active patent, then you may still be able to get a patent on the improvement, but you could not make and sell the existing product if the original patent holder has a broad patent covering the main idea. In that case you would have to sell your improvement as a stand alone product or you could sell or license your improvement patent to the owner of the existing product. For example, if someone had a patent on a unique bicycle and I invented a basket that goes on the front of the bicycle, then the bicycle company would have to buy or license my patent before they could sell the unique bicycle with the basket. Also, I could sell my basket as a standalone unit, but I could not sell the bicycle+basket combo if the first company still had an active patent on the unique bicycle.
If the existing product or invention is not covered by an active patent, then you may be able to get a patent on the improvement, optionally including the existing product. Returning to the bicycle example, if the unique bicycle was not covered by an active patent, then I may be able to get a patent that covers both the basket and also covers the bicycle+basket combo. I could then sell my basket as a standalone unit, and I could sell the bicycle+basket combo.
If you get a patent on an addition or improvement, and your addition proves to be valuable to the original inventor or patent owner, you may find yourself in a favorable negotiating position to license or sell your patent, since the original patent owner may need to license your patented addition to incorporate it into their product.
The bottom line is that it usually makes sense to move forward with a patent on the improvement and either license it to the original patent owner or sell it as a stand-alone unit if the core idea is still covered by an active patent.
Remember – just because you have a patent that does not mean you are free and clear to sell your product. Read our post on this here: You have a patent – so what?