If you’re wondering whether one can you file a patent on an improvement you’ve come to the right place.
An improvement patent is a kind of patent that adds to existing inventions in a particular field. It is basically a type of patent for an invention that develops or adds technology to (or sometimes substitutes from) an already existing patented product. An invention is qualified as an improvement when it adds something extra that’s new and non-obvious to an existing invention when taking into account the prior art. Sometimes, an improvement is just a new use for a previously existing product and sometimes it can be a whole new product.
The Nature of Improvement patents
Patents for improvements aren’t always improvement in the real world. Despite what you’ve been told, an improvement can be anything. It could be as simple as a new element or process or as complex as putting a new technological aspect on an existing product. If it’s useful, the patent office will grant you a patent. An arsenic potion, for example, could be approved if it kills cancer cells.
Broadly speaking, these are the most common types of improvement patents that are granted.
- Additional invention – Adding something to an already existing invention.
- Substitution invention – Changing or modifying an existing invention. For example when Amazon substituted one-click purchases for its online shopping cart, it obtained an improvement patent for the one-click process as a substitution invention.
- Technology Integration – Technology can sometimes make a product more efficient, so it would be worth adding this aspect to your product.
- A new use of an existing invention – This is when a new usage is found for an already existing product.
A patent on an improvement is not always a guarantee of success, but it does mean that you’ve put in the effort to make it better. While the basic patent will cover a chair with three legs, a patent for an improvement may have four legs. If someone were to make a four-legged version of the chair, they’d infringe the basic patent. While the additional leg makes the new chair more stable, it does not prevent the infringement of the basic patent.
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Obtaining Improvement Patents
Improvement patents are usually granted to inventors who do not come up with an entirely original idea. To be eligible for this type of patent, the applicant must show that his invention is an improvement over existing inventions. In addition to demonstrating newness in the field, the applicant must also show that the improvement is more than just functional. Moreover, it must add something new and non-obvious. However, it doesn’t necessarily have to be an improvement in any real world sense.
In determining whether an invention qualifies as an improvement patent, there are two main considerations by the Patent Office;
- Reviewing the complete disclosure of the base patent to determine if there are any technical differences. Technical differences indicate that the improvement is required to be deemed patentable.
- Determining if the differences between the disclosed basic patent and the improvement are so obvious that a skilled person in the art of which the improvement is related would be able to see the difference at the time the invention was made. If these differences are obvious, the invention is not patentable.
While an improvement patent gives the inventor exclusive rights over his invention, it does not grant the right to sell or use the new product. You still have to get the license or permission from the original patent owner.
Improvement Claims in Jepson Format
According to 37 C.F.R. 1.75(e), improvement patent claims should follow a specific template. The said Rule 75(e) essentially gives an order/method to be followed in filing a claim for an improvement patent. The order to be followed is that the applicant shoud give a “preamble comprising a general description of all the elements or steps of the claimed combination which are conventional or known, and a phrase such as “wherein the improvement comprises,” .
The whole idea is to have a preamble that restates all or some elements of an known process, combination or article and then explain “where the improvement lies”. It is the principle of first reciting the exsiting prior art and then demonstrating clearly where an improvement is being made.
An example of a Jepson format claim may read for instance, “A method of recycling non-carcinogenic plastic having …, wherein the improvement comprising …..”.
It is important to note that there are varying opinions on the propriety of the Jepson format claim and its attendant legal ramifications. For example one must consider the principle of ‘prosecution history estoppel’ which anticipates any everything you do say can be used against you FOREVER! It essentially means that when you make an argument to a patent examiner when filing an improvement patent claim or make certain amendments, you are forever prevented from chaning or recanting what you did. This is important because Jepson format claims require the applicant to acknowledge the invention is an improvement on the existing art. Examiners will often search for prior art or a combination thereof to make the invention obvious. This results in rejection of patent.
Nonetheless, Jepson format can be used in certain situations. A Jepson claim may be appropriate in certain situations, such as when the patentee attempts to overcome or prevent a double rejection. This happens where the patentee has his/her own foundational work and needs to disclose it in the preamble as prior art so that the improvement will not be rejected on the basis that it already exists in prior art.
The decision to Patent an Improvement
While an improvement to an existing product isn’t an “invention” in and of itself, you can still file a patent on it. The decision to patent an improvement depends on how commercially valuable the product is. It costs time, energy, and money to patent an invention, so it’s wise to ask yourself whether you can profit from it. If the answer is yes, then you should pursue patenting. Remember, patenting takes time and money, and even minor errors can cost you dearly.
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Using an existing product as an improvement is also a great way to protect it. A patent on an improvement can prevent others from using the product or selling it, so it’s worth getting one. You can even sell the improvement patent to the owner of the original product, which can give you a significant competitive advantage in the market.
Commercially speaking, an improvement can make a big difference in the utility of a product and its appeal to consumers. You may wish to patent your improved product if it makes your product stand out from the rest.
Costs in acquiring Improvement Patents
While the process of obtaining an improvement patent is more complicated than filing a basic patent, patents on improvements, are generally cheaper to file. The cost of a patent application varies greatly from one individual or organization to another. However, if the invention is more complicated, it will tend to have higher filing fees. This will in turn make the process of obtaining a patent on improvements cheaper.
When you want to patent an improvement, you must add the item to the patent. The improvement is more likely to be profitable if it is an improvement of an existing item. Depending on the use for the invention, an improvement patent could include a new version of the product or a different method of using the same item. It must also be unique and improve on the original item. However, it is possible that another company will infringe upon your patent.
However, obtaining an improvement patent requires a rigorous and detailed process. Furthermore, you must demonstrate that your improvement is nonobvious in light of existing prior art.
1. Is the Improvement Original?
A patent is a legal document that grants inventors exclusive ownership of their inventions. This enables them to monetize their ideas and inspires other inventors to pursue similar paths.
To secure a patent, an invention must be unique and non-obvious. Unfortunately, this can prove challenging for some individuals.
To determine if your improvement is unique, conduct a two-part patent search. The first part checks previous patents to see if your idea has already been covered, while the second examines related patents.
One way to guarantee that your invention is unique is to evaluate it within a particular industry. If the improvement represents an essential step that has not yet been done, then it could be worthy of patent protection.
Furthermore, an improvement could potentially enhance a product’s performance or appeal to consumers. For instance, adding rocking functionality to a chair that is too flat could increase its value proposition.
Finally, an improvement may warrant a patent if it demonstrates a new use for an existing item. For instance, taking an ointment that is used on cow udders and applying it to human hair could be considered worthy of patenting.
Once you have identified that your improvement is both original and useful, it’s time to get to work. Although development may take some time, the effort will be rewarded when you receive a patent that guarantees protection for the remainder of its lifespan.
Consider hiring a professional attorney for assistance with the patent application. The patent process can be complex and expensive.
Professional patent attorneys can guide you through the process, answer questions and explain your options in a straightforward and cost-effective manner. Lawyers on UpCounsel hail from top law schools such as Harvard Law or Yale Law and average 14 years of legal experience.
Are you ready to start the patent application process? Reach out to an attorney at UpCounsel today – the best legal professionals are waiting to assist you.
2. Is the Improvement Unobvious?
Assessing whether your improvement is obvious is best done by consulting a patent attorney. A patent lawyer knows all the intricacies of patenting and can tell you if or not your idea qualifies for protection. Typically, they have clients who wish to safeguard their ideas and inventions and offer advice on which path forward would be most advantageous. Usually, attorneys provide several alternatives like licensing schemes, royalty schemes or even recoupment plans so that you make an informed decision that gives your invention the best chance at being granted patent protection.
3. Is the Improvement Capable of Industrial Application?
One of the most crucial criteria in deciding whether your invention merits patent protection is its industrialization potential. This broad category includes anything from a new use for existing material to an efficient process that could save billions in savings to society overall. With that said, there are many potential pitfalls so keep an open mind and clear vision for success.
4. Is the Improvement Suitable for Patenting?
If your idea is novel and undiscovered, filing for a patent might be worthwhile. Before doing so, however, make sure that the improvement being patented qualifies and this is your top priority when deciding whether or not to apply.
When determining if an improvement is eligible for patenting, you should take into account the following criteria. Firstly, the innovation must be novel and not obvious to someone knowledgeable in the art – this requirement is known as statutory novelty.
Next, the improvement must be useful and capable of industrial application. In the U.S., this means that the invention must be made or utilized in some kind of industrial setting and it should describe a “best mode,” which is an efficient method for making or practicing the invention.
Finally, the improvement must not be immoral or deceptive. This can be a challenging standard to meet since many innovations are considered morally questionable – such as drugs that enable people to commit suicide.
Ultimately, the suitability of an improvement for a patent depends on how valuable you think your improvement is compared to other businesses’ improvements. If you think it’s worthwhile enough to merit patent protection, filing an application should be your next step; having legal protection will enable you to prevent other businesses from infringing upon your rights and giving yourself leverage at negotiations if another business tries to copy your product.
The importance of Improvement Patents
A patent gives the holder of a patent the right to exclude others from using or making the invention. They are generally valid for 20 years after filing, and are subject to maintenance fees. They are generally more valuable as a legal right to assert the patent in court. This means that you should file for patents on improvements if you are planning to make changes to your invention and not just because the price matters.
There are a lot of complexities and rules surrounding patent law. Ensure that you speak with an experienced patent attorney for advice. And remember, an improvement patent is different from a basic patent.