JSonnabend

[Jp]

I want to know if a product that is common can be patented if a new size that did not exist before is useful because it creates an advantage, that was not previously developed.

[DogDayPM]

I want to know if a product that is common can be patented if a new size that did not exist before is useful because it creates an advantage, that was not previously developed.

I can't think of an example that would be.  If the new size is advantageous, why isn't it obvious to go ahead and make the thing in that new size?  Think about the hundreds of "pocket sized" widgets out there that are smaller versions of the original product.  Maybe you had to surmount some mountainous developmental hurdle to get it in the new size?  That could argue against obviousness.

[Jp]

I can't think of an example that would be.  If the new size is advantageous, why isn't it obvious to go ahead and make the thing in that new size? 

The advantage is a new use, (of a Kind), . . example, the previous common size, would present an obvious difficulty concerning convenience, to the new user.

 Think about the hundreds of "pocket sized" widgets out there that are smaller versions of the original product.  Maybe you had to surmount some mountainous developmental hurdle to get it in the new size?  That could argue against obviousness.

If it was obvious than why was it not manufactured for the intended use that I am presently speculating, in the last thirty years, since it has been on the market that long and the useful convenience is very obviously the advantage over the previous product, size, . . that the new user will have the advantage of .

[Jp]

Let me try that again, . . .

If I have decided to make toe nail clippers large for use as toe nail clippers, as both were used to clip nails but for some reason the finger nail clippers were not used to cut finger nails, or at least not appropriately, then the usefulness, which is obvious to most of use who have both toe and nail clippers is obvious.

I am trying to think of a better example, . .

But, if the time of the use of the finger nail clippers had been around for a long time, then it would be controversial to say that it is obvious, in fact it must have been very un-obvious since no one came along a contributed the advantage.

[andromat]

I think the idea is that patents should teach something. In your case, since the article itself is already known, the results produced by the use of such enlarged device must be deemed unobvious in order for it to be patentable, I believe. Here’s out of the book example: “… the use of a large pulley for a logging rig was held nonpatentable over the use of a small pulley for clotheslines. These situations are knows as obviousness by analogy.” - Patent it yourself By David Pressman.

[Jp]

I think that patents are meant to encourage a person to feel that the free enterprise system is rewarding and therefore be one of the factors that stimulate the advancements of technology within the society.

No Reward-No Incentive-No Advancement- No Fingernail Clipper !

Although I can only conjecture my thoughts, and lack the legal knowledge to
conjecture otherwise, the two use claims are different in both cases,

There is a point, that the use is obvious in this case of size difference, however, "I do not believe that this is a rule of thumb".

It previously was my opinion, (from some unknown source), that an eating fork and a tuning fork are useful for two different things, . . each would be patentable, (Just Kidding ).

But an eating spoon and a stirring spoon of the same design, I am afraid, (given the opportunity, and the arms),  that I might do battle to and or beyond the Supreme Court, arguing that the usefulness is a determining factor, .

I give this example, because of the size of a stirring spoon, etc.

 

[JimIvey]

If it's not obvious, it's patentable (pretty much).  I agree with the others here; most often, a change in size and nothing else tends to be obvious.  However, Jp seems to have a reason to believe his size change is not obvious.  If so and he prevails on the argument, there's no reason not to grant a patent (assuming all other requirements are met).

Let's see if I can imagine an example.  Someone mentioned fingernail clippers here.  Imagine they were sized up and used to snip rebar in building demolition or disaster recovery.  Still obvious?  I don't know.

Just be aware that the more dubious your argument for non-obiousness, the more challenging it will be to get a patent.

Regards.

[Jp]

An analogy of non specific logic, in my opinion, . that should be directly related to

the definition of obviousness in patent law, . . 

" A novel use applied to a device as an advantage, that is not  public knowledge

during the life of a patent, is a use that is obviously, not obvious.

This can not be disputed, if the democratic free enterprise is to be preserved,

than this true fact must remain the truth". (Jp 2010)

[Jp]

An analogy of non specific logic, in my opinion, . that should be directly related to

the definition of obviousness in patent law, . . 

" A novel use applied to a device as an advantage, that is not  public knowledge

during the life of a patent, is a use that is obviously, not obvious.

This can not be disputed, if the democratic free enterprise is to be preserved,

than this true fact must remain the truth". (Jp 2010)

OK !

[BobRoberts]

Perhaps if the old (smaller) item was unusable for the current task?
If you can't get the protection on the apparatus,perhaps on the new use (for the larger, but determined to be obvious, apparatus)?  Still allows the cliet to place patented on the item- sometimes that is all the client is really looking for- just discuss the advantages/disadvantages upfront (including enforceability).

[klaviernista]

I want to know if a product that is common can be patented if a new size that did not exist before is useful because it creates an advantage, that was not previously developed.

The only clear example I can think of where size might impart patentability is in the nanotech field.  E.g., from my experience as an examiner in the magnetic arts, I know that certain alloys can exhibit completely different magnetic properties based entirely on grain size.  E.g., a 12 nm grain of an alloy might exhibit ferromagnetism, whereas an 11nm grain of the same alloy might (quite unexpectedly) exhibit superparamagnetism.  In that instance, there are multiple factors supporting both novelty and non-obviousness. 

So, I will answer your question with a qualified yes. 

[Jp]

Thank you both your replies, . .

Regarding the, "clear example", and it's possible relationship to my query.

Since evidently seems or is a, "rare", incident, I am not able to think of a clear example at this time without coming close to divulging my particular use claim.

I'll think on what you have said and try to get another analogy.

Thank you!