Can You Patent an Improvement to Someone Else’s Patented Device?

Imagine you came up with an innovative improvement to revolutionize cellphones. Can you patent it?

Yes. Absolutely. These types of patents are referred to as improvement patents. Now keep in mind that improvement patents are not patenting someone’s patent, but patenting the improvement.

You cannot patent someone’s patent- but you can patent improvements!

The Patentability Standard for Improvement Patents

An invention that is an improvement on a previously patented invention can be patented so long as the improved invention is:

  • New – no one else has advertised, sold or patented the same or similar improved invention
  • Useful – the improvement adds new functionality to, or extends the existing functionality of, the previously patented invention
  • Not obvious – the improved invention is not an obvious combination of the previously patented invention and one or more features commonly used in similar inventions. The more unusual or creative the improvement, the more likely the resulting improved invention is not obvious.

Your Improved Invention May Infringe Patents- Even if You Get an Improvement Patent

Improvement patents do not guarantee lawsuit prevention!

Many people are under the impression that if they are granted an improvement patent, they are free to build, use and sell the invention without fear of being sued for patent infringement. Sadly that is not always true.

Consider a hypothetical patent on an invention that claims an invention that includes elements A, B and C. If you were to develop an improvement to the original invention that additionally includes element D, you may be able to get a patent claiming elements A, B, C and D.

However, your invention will still include elements A, B and C, and will infringe the patent on the original invention if the patent has not yet expired. If the original patent is expired, on the other hand, there is no danger of being sued for infringement.

Improving Old Inventions Can Be Profitable

In fact, some inventors make a business out of scouring expired patents for inventions they believe they may be able to improve. It’s a legitimate business practice, and part of the reason why patents are publicly available – to encourage innovation based on extending existing technologies.

Law 4 Small Business, P.C. (L4SB). A little law now can save a lot later.

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