patening an invention when a similar patent exists

[mrjigger]

I recently thought of and built a working model of something that can be used for fishing. It is kind of an improvement or different way of using something that currently exists. But I am quite certain nothing like what I have has been or is currently for sale.

The problem is, I did a quick search on the U.S. patent HSOforum and came across a patent that already exists for a similar idea. My design is different in a couple ways though. The existing patent is kind of a multi use device. The device the guy patented can be used for like 15 different things. And one of the uses is similar to what I invented. Mine is used solely for this one idea.

Does anybody out there have experience with obtaining a patent?

Would I have a shot in the dark to get a patent based upon the info I provided.

The patent HSOforum says the idea has to be novel and unobvious.

There is something like 7 million patents, seems like it would be pretty difficult to pass the novel requirement with this many patents.

[bobbymalone]

You might hear want you want to hear, or not, in this forum but ultimately you are gonna want professional advice from a patent attorney.

It doesn't matter if the previously patented thing isn't for sale, only the patent matters.

You can't patent a use for something that already exists. Ideas are not patentable.

Better have a market available to. Patents and attorneys are not cheap. I have heard that less than 3% of patents actually turn into a profitable product.

[JimBuck]

Good advice Bobby. If your serious about it I recommend speaking with an attorney as well. Whatever you decide to do, good luck and let us know how the process goes.

[CAMAN]

Definitely talk to a patent attorney.

But from what I understand is if the patent on the existing product is only for the assembly of the product and not the actual use of that individual item you are fine and should proceed with the patent process.

However, if the item is individually patented and there is no other way to design it then you may be SOL.

But talk to a patent attorney and see how they interpret it according to your individual circumstances.

[CJH]

May be worth a conversation with a patent attorney, but it sounds pretty "slim". You never know though. Just remember that he gets paid the more he works for you.

[Gissert]

Good luck. Come up with a good idea, and there will be knock offs faster than you can blink. Unless it's truly a breakthrough product, a patent will cost you big bucks, and there might still be knock offs.

Sorry to paint a bleak picture, but the fishing biz is pretty cutthroat.

[Wish-I-Were-Fishn]

Many patents are not as solid as one would think. Just look at any product in the store and you will find several brands of essentially the same thing, with some differences.

Food for thought: the only thing a patent does is it gives the holder the right to sue somebody that infringes on the patent... if they can afford to.

Usual recourse is you would receive a notice of patent infringement and a warning to cease selling your item. After that, it could get nasty.

[mrjigger]

thanks for the advice. How the heck is a guy supposed to get ahead??

I have spoken to a patent attorney, but that was before I knew a similar patent existed.

Once I found out how much it costs to hire a patent attorney, I started researching how to apply for the patent myself. I might go that route, it doesn't sound too expensive if you try it yourself. Sounds like the process is a pain in the neck though. Most times the patent office tells you no at first, and then you need to appeal and explain why you deserve the patent. And that process could go back and forth for quite a while.

The thing is, my idea is not something that is going to make me rich. But it is a device I think has some marketability.

But why even get a patent if someone can still copy my idea.

[Ed Carlson]

It will cost you about $10,000 to per patent to get it applied for straight up. Since there is a existing patent already in use very close to your idea....it's sketchy if it is worth the investment...unless it is a significant technological improvement that is well documented in it's origins from start to finish....your call.

And as others have already said, unfortunately there is no 100% guarantee someone right here in the USA will not take it to China, Vietnam, South Korea, El Salvador....or wherever...and slip around the US patent protection, and gamble you will spend the $$$$$$$ to fight it in court.

[CJH]

thanks for the advice. How the heck is a guy supposed to get ahead??

I have spoken to a patent attorney, but that was before I knew a similar patent existed.

Once I found out how much it costs to hire a patent attorney, I started researching how to apply for the patent myself. I might go that route, it doesn't sound too expensive if you try it yourself. Sounds like the process is a pain in the neck though. Most times the patent office tells you no at first, and then you need to appeal and explain why you deserve the patent. And that process could go back and forth for quite a while.

The thing is, my idea is not something that is going to make me rich. But it is a device I think has some marketability.

But why even get a patent if someone can still copy my idea.

Not being a jerk, but you are basically saying you are taking somebody's else's product and tweaking it, than complaining that somebody can do it to you???

Just trying to put it in perspective. Patents are only strong when they are truly an innovative, original idea that nobody has seen before. Even then there is not guarantee someone won't copy it (its public record) and run to China and copy it, safe from any recourse.

I know an engineer who has developed several new methods in metalurgy and won't patent them, because he knows the process he invented will get ripped off immediately, and he will be SOL. That's just the way it is.

[mrjigger]

You do have a point CJH. And I respect your opinion and appreciate your help.

But to me the difference is, I honestly did not know their was an existing similar patent for my idea until after I actually built my model and tested it. I didn't actually know I was taking someone else's idea or product. The product I built, is not for sale today anywhere that I am aware of.

What I am gathering from some of the responses is that even if I got a patent and was able to market and sell my product, someone else could come along after seeing my design, make a few modifications and sell something similar.

I didn't know what I was building was a copycat.

You have a point though, my idea technically is not my idea, because a patent exists. But I did not know that. A little different than taking something that is actually for sale, tweaking it and selling the same thing with a few mods.

[bobbymalone]

legally, it doesn't matter if it came to you in a dream or you just altered someone else's design. just means you didn't think of it first.

if there is a market and you can make money it might not matter if somebody else makes a few changes and sells something similar. Think vexilar, marcum, humminbird. pretty sure vexilar had the original patents and the others just made some alterations.

[CJH]

Mr Jigger, again not trying to be a downer, just trying to give you a real world perspective so you can make the best decision you can. Only you can make that decision for yourself.

Hope it works out for you, good luck! I am all for entrepreneurship and innovation!!

[toomanyjigs]

i would think you can explain your modifiction to the company in a letter and a pic .mail it certified mail and if the company uses your idea you have a dated document that you had the idea first and they accepted it-jigs

[CJH]

That won't hold water in a court of law. That only works for songs/literature. (you can just mail it to your self, or just register it with the writers guild)

[delcecchi]

I have invented a number of things that were already patented. I have also had a few things patented.

As several people have said, the patent will only give you the right to go to court. The ultimate story there is the guy with the patent on intermittent wipers on cars who tried to sell it to Ford. Ford ripped him off and he had to fight in court for many years but finally won.

Anyway, it may or may not be worth patenting. If it is worth patenting, it probably is worth hiring someone to do it right.

Sometimes a modification or extension of someone elses idea is quite valuable, if the extension makes the product or process more desirable.

Since public disclosure of the invention gives you only a year to file, if you want to discuss it further you can email me at (my username) at gmail.com

Here is a good example. Think of a Lowrance Green box and then read the first Vexilar patent, 3764962

You can look it up on several sites. It has 13 claims.

The value depends totally on the details. And it is unlikely that any company will look at it for fear of being sued.

[Tom7227]

"Tweaking" can mean a lot and it can lead to something that can be patented. Maybe you're getting hung up on something that won't gain you much. Consider doing some market research and see if you can find out if your idea really has some legs. If so then you need to figure out if you can come up with the funds needed to do the manufacturing work and get it built. Then maybe you end up sitting in a booth at fishing shows for a while and trying to sell it. There's thousands of people that have done this. Some have success, others not so much. It's going to be a lot of work and if those aren't the kinds of things you're interested in doing start looking for partners.