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Is it worth pursuing a patent for something that seems like a variation of what someone else has already submitted an application, advertised, published, created or marketed, etc?

How "different" must an invention be (i.e. how is it defined) from one that is similar to be legally patented by someone else?

Over the course of my adult life, I've thought of a myriad of "inventions"; that is, until I did a patent search only to find someone has already beaten me to it. Some examples were my Triple Bunk Beds, Bicycle Seat without the piece that hurts your crotch and most recently, a Stink Bug Trap. While each is not exactly like mine, it is enough like it that anyone could potentially cause legal problems for me if it made it to market.

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Quoting from http://www.bitlaw.com/patent/requirements.html

If an invention is not exactly the same as prior products or processes (which are referred to as the "prior art"), then it is considered novel. However, in order for an invention to be patentable, it must not only be novel, but it must also be a nonobvious improvement over the prior art. This determination is made by deciding whether the invention sought to be patented would have been obvious "to one of ordinary skill in the art." In other words, the invention is compared to the prior art and a determination is made whether the differences in the new invention would have been obvious to a person having ordinary skill in the type of technology used in the invention.

As can be imagined, the determination of whether a particular change or improvement is "obvious" is one of the most difficult determinations in patent law. In order to make such a determination, an examiner in the patent office will normally review previous patents to find those patents which are closest to the invention in which a patent is sought. If all the features of the invention can be found in a single patent, the examiner will reject the patent as lacking novelty (that is, it is exactly the same as what was previously known and therefore is not new). If no patent contains all of the features, the examiner will attempt to combine two or more prior patents, and attempt to find all of the features in a combination of those prior patents. If the examiner is successful in finding such a combination, the examiner will generally reject the invention as an obvious combination of items known in the prior art. However, there must be some reason to combine the two references, and often a rejection based on such a combination can be overcome.

Some changes to known products which would not normally be patentable are:

  • the substitution of one material for another, or
  • changes in size.
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Worthiness of a patent having a variation (marginal/drastic) can be gauged in different terms. However it is advisable to gauge worthiness of patent in terms of technological advancement, consumer demand and monetary benefits.

For a proposed invention to be patentable it has to fulfill novelty and non-obviousness criteria. Since the device that you propose to patent is in some form different from existing technology, the question is whether those differences would be sufficient to make your device non-obvious.

The invention can pass the non-obviousness criteria, if it has technical advancement that is not obvious to a person with ordinary skill in the field of the proposed invention, in light of existing technology. It shall be noted that, non-obviousness is determined on a case-to-case basis.

You may want to refer the article at the below link to get insight on patentability of an invention. http://www.invntree.com/blogs/how-can-i-find-out-whether-my-invention-patentable

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How will your idea bring benefits over the patented one is one way to assess whether your idea can be patented.

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