If someone re-patented a patent from a toy that was produced in the 70s, and they are granted the patent… Does that mean that they have changed the patent enough to receive the patent approval? Like… Let’s say that a patent for one thing uses a light bulb and the other uses an LED (updated version of illumination) and maybe uses a larger version of accessories than the smaller version from years ago. I guess what I’m saying is someone created something that is a larger version of some thing from years ago. Is that enough for a re-patent? I have something I would like to produce, but there is a patent already in place for the item that I designed before I knew there was a patent. I assumed there was no patent because the patent for the toy many years ago has run out. The only thing I see as non obvious or different in this patent than the one from the 70s is that they use a different illumination (because we have LED now) and it’s larger. The structure is slightly different, but basically the same concept. Just wondering if that patent would preclude me from doing something similar because it is so similar to the original patent. I noticed this statement in another persons question about this same thing… “to infringe, the design of the product would need to appear to an ordinary observer, taking into account the prior art, to be the substantially same as your patented design”. Considering this statement, to my untrained eye, the person that received the patent for this product just enlarged his product and used different lighting based on technological advances. Based on the statement above, this should not be patentable but has received a patent I believe. Any advice? I could provide the device I am referring to if appropriate.
Producing something an individual received a patent on regardless of similarity to an expired patent
1 Answer
You've asked a lot of questions. This site works best with questions that ask one or just a couple related questions. I'll try to answer as best I can.
You can't re-patent a patent. A patent lasts 20 years and then anyone can use the invention disclosed within it. If you make an improvement then you might be able to get a patent on the improvement alone assuming it meets the requirements of a patent, eg. novel, non-obvious and useful. Simply making a larger or smaller version of an existing product is very unlikely to be patentable. Neither would just substituting an LED for an incandescent bulb. That would be considered obvious.
An entire product is unlikely to be patented as a whole product. Rather, a mechanism or process used within the product might be patented. To know what a patent covers, you need to read and understand the claims. Patents that would seem to be all encompassing might actually just claim a small detail.
Now, what I've written so far is with regards to utility patents. There are also design patents. Design patents cover the appearance of a functional object. In the case of a toy covered by a design patent you would have to avoid looking too much like the patented toy. Design patents are only in force for 15 years.
If you have questions about a specific patent then provide the patent number or better yet a link to the patent and we will be able to provide more specific answers. You can edit the original question to add this detail.
-
And just bigger or smaller doesn’t avoid patents or prior art .– George White ♦Commented Jun 18 at 1:33
-
@GeorgeWhite I left it slightly less than absolute because I was considering if one made something extraordinary small, like microscopic. That might have patentable aspects.– Eric SCommented Jun 19 at 0:19
-
Absolutely - if size change involves novel structural differences to achieve the change it could be patentable.– George White ♦Commented Jun 19 at 15:21