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   Applying an existing patent to another product
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   Author  Topic: Applying an existing patent to another product  (Read 1486 times)
jeff razenski
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Applying an existing patent to another product
« on: Oct 8th, 2005, 5:54pm »
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I asked a question in this forum a while back and did receive some very helpful answers and hopefully someone can help me out a little more.   Ok, here was my original question,
 
"My second question is can someone take an invention from one product and then apply it to another product and receive their own patent for the different product. For example, suppose I had a great idea for a patent that would apply to boats, however this idea has already been invented and is being used on vehicles and I'm confident it is not being used on boats. To give more of an insight of what I'm leading up to I will try to use a good anology. Everyone has probably heard of the intermittent wiper (the wiper on the back windows of SUV's). Now suppose that the guy who invented this technology had it patented for cars and then I came along and said wow what a great idea and I then come up with a simlilar idea for boats to have an intermittment wiper on the back window of the captains  
pit. Would I be able to get a patent on this since the technology was out there, but the patent was only for vehicles and not boats? ANother good example would be going back to my pizza days and I read in a pizza trade magazine that the 3 legged plastic that you see in the middle of pizzas to prevent the box from caving into the pizzas was invented by a lady from NY and supposedly she made millions from this idea. Once again, if I had taken that idea and came up with a similar aparatus for cakes would my patent be a strong one or would the lady who invented the pizza device have a blanket patent for any similiar device used for other foods even though her patent only focused on pizzas? "    
 
Now my question is regarding the "non-obviousness and obviousness" criteria which I believe would be the biggest obstacle in getting a patent in my above analogies.    Now suppose the itermitent wipers for vehicles and the 3 legged plastic for pizzas had been commercially used for 10 or 15 years after being patented and no one has thought about using the intermitent wipers for boats or 3 legged plastic for cakes during all those years.   Now as the inventor of intermitent wipers for boats or 3 legged plastic for cakes couldn't you claim that if it was so obvious then why hasn't anyone thought of it and commerically marketed if the technology was known for 10 or 15 years.   For example, I'm applying for a patent for intermitent wipers for boats and the agent working on my application at the USPTO says to himself, "who does this guy think he is trying to get a patent on intermitent wipers for boats, heck I have intermitent wipers on my SUV, so this is far from non-obvious."   I would probably agree with him and then my argument would be if it was so obvious then why hadn't anyone thought about if for the ****pit on boats in the 10 or 15 years that intermitent wipers have been on the market?    
 
Thanks for any help with this matter!
 
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JimIvey
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Re: Applying an existing patent to another product
« Reply #1 on: Oct 10th, 2005, 1:00pm »
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The bottom line is that you'd be fighting an uphill battle -- expensive with a relatively low chance of success.  
 
Your argument seems right at first glance, but generally doesn't work with examiners.  It doesn't come down to whether such an adaptation ever succeeded in the marketplace.  It comes down to whether the combination would have been obvious to try.  All you need to defeat you is a little statement in the original wiper patent that intermittent wipers could be used on other vehicles like boats, planes, etc.  The fact that no one has succeeded in the marketplace doesn't negate that the idea of using the intermittent wipers on boats is already out in the public.
 
Now, suppose that intermittent wipers aren't used on boats (I believe they are, but let's suppose they aren't).  Why is that?  If you figure that out and find a way around it, you might have a non-obvious idea there -- not to use intermittent wipers on boats but instead some important improvement on intermittent wipers that makes them much more useful on boats.
 
I hope that helps.
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James D. Ivey
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Jp
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Re: Applying an existing patent to another product
« Reply #2 on: Aug 25th, 2006, 3:43pm »
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In the same case, would there be any valid benefit, if you were the inventor of the wipers or the pie protector, and you did not file a patent, then someone else did, . .  later if you came along and decided this is also a good idea for boats and or cakes, if you were to have your previous documentation's and could prove that you were the original conceptor, again, would you have any entitlement to file a legitimate patent for the specific new use in this case, cake protector or boat wiper ?
« Last Edit: Aug 25th, 2006, 3:56pm by Jp » IP Logged

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JimIvey
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Re: Applying an existing patent to another product
« Reply #3 on: Aug 25th, 2006, 4:16pm »
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One of the more popular misconceptions in patents is that the first person to think of something owns the rights to it.  That's not how it works.
 
In your scenario, you thought of something first and didn't patent it.  If more than a year passes from the first public use or disclosure or first offer to sell the invention -- even if by someone else, you can't get a patent on it.  Period.  Having thought of it first does not help you.  Period.
 
Now, if you used your invention publicly (or disclosed it publicly or offered to sell it) more than a year before the other person patented the idea, their patent is invalid.
 
As for applying the same technology to a different product, see my previous answer.
 
Regards.
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James D. Ivey
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Re: Applying an existing patent to another product
« Reply #4 on: Aug 25th, 2006, 4:47pm »
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Jim,
 
Concerning your comment, . .  
 
"Now, if you used your invention publicly (or disclosed it publicly or offered to sell it) more than a year before the other person patented the idea, their patent is invalid."  
 
What constitues public disclosure ?
 
If there is an invalidation, does that give the inventor, (in this case), more than a year later, the right to file a patent ?
 
Jp
 
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