Technically you can’t patent an existing product, however, the rules were written in a way to allow for future innovation. That means there are ways to get around the regulations.
In order to patent something that already exists, you must either:
- Find a new use for it, or
- Find a new way to combine existing things
A new use can include solving a different problem, applying the invention in a different way, or discovering a new function. Combining multiple things that already exist in a new and unique way is also patentable.
Patenting a New Use for an Existing Product
A requirement for every patent application is that the inventor states the utility or use of the patent. The stated utility in a patent limits the patent protection to that or an equivalent utility. Taking something that already exists and finding a new use for it is considered an invention, and worthy of a patent. This patent does not cover the old product, instead it grants a patent on using the old product in a new way. Others are still free to use the old product but cannot use it in this new way that you have patented.
Similarly, you can patent a new combination of existing things. Arranging existing things in a new way which provides a new benefit is patentable. Even if all the individual components of your invention have been patented before, finding a new way to combine them amounts to a patentable invention.
How to Obtain a New Use or New Combination Patent
Some groundwork will be required before submitting the patent application to the United States Patent and Trademark Office (USPTO). Here are five steps to get a new use or new combination patent.
Step 1 – Identify the new use or combination
There are two scenarios where you may try to patent something that already exists.
- You have an idea for an invention, and you find out it’s been done before
- You try to find a new use or combination of something that already exists
If you invent something only to find out it has already been done, you must find someway to make your invention different than what currently exists. Look at your invention and list every possible thing that your invention can do, every way that you can use it, and every different combination of parts that you can think of.
A different approach is to start with something that already exists and try to find a new use for it. Finding a new use can involve experimentation and testing of the product to discover a new property or application for it. A new use does not have to change the product at all, but a new combination must arrange the components in a completely new manner.
Step 2 – Research what has been done
To differentiate the new use or combination you must compare it to what has already been done. The USPTO website and Google Patents are great resources for searching for patents. Use these databases to find the product you wish to start with, or patents that are similar to your invention. As you read through a patent ask yourself and make a note of the following:
- What is the utility, function, or use of this patent?
- What is this patent accomplishing?
- How are the individual parts of this invention arranged?
To get a patent on your new use or combination you must ensure that it has not been done before. Make sure that you thoroughly search for anything remotely related to your idea.
Step 3 – Determine the novelty of your invention
Now compare your new use or new combination to inventions that already exist. Is your new use different than what the old invention was accomplishing? Does the new combination of parts offer some new benefit? You can figure out what makes your use or combination “new” by comparing your idea side-by-side to what has been done before.
Step 4 – Draft an application
Drafting a patent application is a very involved task and a patent attorney is always recommended. The application must describe the new use or combination and differentiate it from what already has been done. Applications need drawings, claims, and a complete description of the invention.
Step 5 – Submit the application
Submit your application to the USPTO and pay the appropriate fees. Applications may be submitted on the USPTO’s website.
Examples of Patents on Existing Products
The pharmaceutical industry frequently applies for new use patents on drugs. Say a company discovers a new molecule which treats high blood pressure, and they file a patent on it. This patent only covers the use of this drug to treat high blood pressure.
Several years later the company discovers that this drug is also effective in reversing dementia. The company can file a new patent on the use of this drug in treating dementia. A real-world example of this is aspirin. The patent for aspirin expired in 1917 and the molecule acetylsalicylic acid is no longer patentable. However, anyone can patent a new use for aspirin if that use has never been done before.
Patenting a new combination of existing components happens very frequently. Take for example the iPhone. The touch screen, the camera, the phone, and the portable electronic music player all existed before Apple came out with the iPhone. Apple created a new combination and arrangement of all the individual components in a way that amounted to a new invention.
Another example is genetically modifying an organism by adding a gene that already exists. The GloFish is a patented brand of genetically modified fish. Researchers took a bioluminescent encoding gene from a jellyfish and inserted it into a zebrafish which caused it to glow. Both the jellyfish gene and the zebrafish existed before the patent. By combining both components in a new and unique way, they created a patentable invention.
Sheldon received his training of the patent system at the United States Patent & Trademark Office. He works with universities and consultants to provide analytics and guidance for technology commercialization from patents.
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