I have a friend who has as idea for a product based on technology he invented. The problem is that we have seen another company that basically does the same thing, although it works differently.

The question is: Can my friend legally sell his product and get a patent, or does the fact that someone else owns a patent for a product that does the same thing stop him from doing so?

I searched and see patents for similar ideas, but none of them seem to be in the market. I see they received patents, but further searches do not show me that the products are actually being sold anywhere.

The product I am talking about is owned and patented by a major US company. They install this is all their new products.

It is hard for me to be more specific without betraying my friend and his idea.

For example, there are many cell phones out there. Did one company ever have the patent for cell phones? Or could someone make a new cell phone that works a little differently?

This product is a product for retrieving stolen property. As I mentioned, it is already offered by a very large US company. My friend has the same idea, meaning to retrieve the stolen property by making the product useless.

For example. I have a computer (just an example). Someone steals my computer. A company out there already has a patented product that will locate the computer, and render it useless.

I cannot imagine that the idea itself would get a patent. Everyone would like to have such a product. SO is the IDEA patented in general, or is the specific way it works patented?

Can the company that now owns a patent and sells a similar product stop my friend from doing the same thing but in a different way?

  • 2
    What a patent covers is dictated by the wording of its claims. Claims may be written more broadly or more narrowly. If what your friend plans to do falls under the wording of at least one claim then he would be infringing. Note that claims are often hard to read and interpret. – George White Jun 26 '14 at 20:04

You are correct to say that an idea cannot be patented. And if your friend has a unique way of solving this problem, then he probably can seek a patent. But I think you are asking the wrong question. The question is whether or not your friend has come up with an idea that will have a value to anyone. For example, if your friends idea is less costly than existing methods, is more effective, or harder for thieves to overcome.

"I searched and see patents for similar ideas, but none of them seem to be in the market."

Whether the other patents are in the marketplace has very little to do with whether your friend's invention can be patented.

"we have seen another company that basically does the same thing, although it works differently."

If it works differently, then there is hopefully something you can claim in your patent that has not previously been disclosed publicly. Public disclosure includes claims of issued patents, the written description of issued patents or published applications, other publications including on the Internet. If your claim has elements A, B, C, and A and B are previously described but C has never been described anywhere, then you're in good shape.

Good luck!

The short answer is no. You cannot patent an idea, only an implementation. These generally fall into one of the categories of a process, a machine, a manufacture (combination of materials to make something new), or a new composition of matter (chemicals or drugs).

More info:

https://www.legalzoom.com/articles/can-you-patent-an-idea

http://www.uspto.gov/web/offices/pac/mpep/s2106.html

  • I think you misunderstand his question. His friend is not trying to patent the idea. His friend has a new implementation, but worries that since the idea is not original, he may not be able to patent it. – DonkeyBoy May 26 '17 at 5:25

The question is: Can my friend legally sell his product and get a patent, or does the fact that someone else owns a patent for a product that does the same thing stop him from doing so?

There are really two questions here:

  1. Can friend sell the product?
  2. Can friend get a patent?

To answer #1, we need to see if the product infringes any of the claims in a granted patent.

To answer #2, we need to see if the friend invented anything that is novel and obvious over existing publications (e.g., the disclosure of the patent).

Example

Company invented a car. Friend invented roll-down windows.

#1 Can friend sell cars with roll-down windows? No. That would infringe the car patent.

#2 Can friend get a patent on roll-down windows? Yes. Clearly a non-obvious feature.

Better but more complex example

Company invented car with a diesel engine. Friend invented gasoline engine.

case 1: Company claimed a car with internal combustion engine. Then friend may obtain a patent, but cannot sell cars, as a gasoline engine is covered by the claim scope of "internal combustion".

case 2: Company claimed only diesel engine or only car with diesel engine. Then friend can not only get a patent, he can also sell cars with gasoline engines.

The actual outcome will depend on additional legal considerations, such as doctrine of equivalents and the state of the prior art.

How to get past the big boys? If you have a good idea, there's bound to be somebody already cashing in and telling others that they got this one in the bag. But if you step back and take it all in, there's really nothing stopping someone else from cutting a slice of the pie. IBM had the computer industry in the palm of there hands. But that didn't stop the likes of Bill Gates or Steve Jobs. Hard to believe that "giving a kid a break" could result in billionaires. But they were smart kids. And they didn't let the patent world get in the way of making there idea a reality.

There are many factors for an invention to get a patent. If a similar patent exist, a patent can still be granted to an invention provided it is an improvement of the existing one. Improvement patent are issued if you add something new to an existing patent. Let's say you have incorporated new technology to the old patent or find a different use to it.

  • 1
    -1 There is no such thing as an "improvement patent". – Atsby Jul 4 '15 at 19:05

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