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We have tried to patent a system few years ago, but we couldn't patent it because we had sold few systems more than 1 year before we tried to obtain the patent. Now we have modified the system in a way that it is much better improved. Can we patent the complete system with the improvement now? The system remains basically the same, but now we can apply it to other industrial processes for having improved the temperature that it supports. Thank you.

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Yes, you might be able to maintain the position that the improvement is patentable, as something new and unobvious over the original version, and you might get a patent for it.

But bear in mind that such a patent won't cover what was already in the prior art and free-to-use. Whether a patent claim is legally valid, and whether it is commercially valuable are two quite separate questions with potentially different answers.

One crucial question would be, does the improvement give the improved product a competitive edge, would the original in the hands of a competitor still amount to effective competition with the new version? If the market doesn't care which version it gets, a patent on the improvement might possibly not be worth having, patentable or not.

  • Thanks @terry-s, the original system got a free-to-use letter (requested by one of my customers), no one yet has claimed a patent on my system, they did for similar cases, but not exactly what we did. The system is a RFID sensor located in a hot surface (700F), and we track the hot surface with it. We have created a new sensor that is capable to rise the temperature to almost double (1350F). So we can track the surface now in other areas of the process too. I understand by your comment that we can patent the new sensor, but not the original system? with the new sensor? – Fred Mar 15 at 12:43
  • The new sensor itself might or might not be novel and non-obvious; the system with the new sensor might or might not be new and non-obvious; and the new uses you can now put the system to might or might not be new and non-obvious. Three distinct issues that depend on the details. – George White Mar 16 at 3:42
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You might be able to. Many patents would be considered improvements on something that came earlier. If the newer system is structurally different and that difference is non-obvious from everything that preceded it, including your previous system.

Depending on the details you can patent both the improvement and the entire improved system. Also, the new use - as a method - may be patentable.

In your example, the original system was your own and wasn't patented. In a different case where the older system might have been patented by another a commercial issue comes up. It might be that the improvement is such that any system incorporating it might inherently infringe on an existing patent relating to the older system. In that case anyone practising your patent would need a license to both your patent and the earlier patent.

  • I think they are asking if the can obtain patent protection for the entire system, not just the improvement. The answer to that is no. Only the improvement might be patent eligible. – Eric Shain Mar 14 at 1:37
  • Yes George, that was my question. The improvement will allow the system to be used in other different processes. Thanks for the answers. – Fred Mar 14 at 22:06
  • @eric - One can get a patent on a system that has been improved by some isolated change. An improved airplane wing as well as a complete airplane with the new wing can each be patented. If the plane with the improved wing can now fly underwater, a method of flying underwater could be patented. Also, the term patent eligible tends to mean that something is within the realm of things that could conceivably be patented. Abstract ideas and laws of nature are said not to be patent eligible. – George White Mar 15 at 3:25
  • I understand all that. What I was worried about was that the OP was perhaps thinking that by making the improvement they not only get to patent the system with the improvement but somehow gain patent protection on the original aspects of the system too. – Eric Shain Mar 16 at 1:38
  • that is a valid concern – George White Mar 16 at 3:40

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