Darius

Is “somewhat patented” anything like a little bit pregnant? Just kidding! I’ve found that patents can be a bit of a mine field but like it or not, they can be very important. If you think your idea has a chance of real commercial success, then you’re right to be looking for other things like it that my have already been done. The question is how best to do that? With the internet we have a lot of information at our fingertips such as Google Patents, Patent Storm and of course, the USPTO itself. But how does one know whether one’s own efforts will be sufficient? The only way to be really sure is to have a patent attorney (I’m not one) do a search for you. Lisa just mentioned that back in 2003 the cost was $595. Today my patent attorney charges $600. The attorney I had before him charged $750.

But even when you leave it to the pros, the process is not a perfect one. My first patent attorney missed a key piece of prior art that the USPTO is currently beating us over the head with. I was none too pleased to find this out so I felt compelled to ask my current patent attorney if I should consider some sort of legal action against the first one. The last thing I would ever want to do would be to try and sue a lawyer, but I had to ask because one of the very first questions I asked the first attorney about was whether my idea would be considered obvious which is exactly what the USPTO is using to try and deny my claims now! And I proceeded to invest significant time and money based on the first attorney’s opinion that my idea was NOT obvious. But my current attorney was quick to point out that when ANY patent attorney does a search it always comes with a disclaimer basically saying that they can’t guarantee that the search will turn up EVERY piece of prior art.

The reason I’m telling you this is to simple try and illustrate how complex and nuanced the whole patent process can be. Nonetheless, there’s no substitute for professional opinion when it comes to patents. As Bob just pointed out “similar” is very open to interpretation. But similar doesn’t necessarily mean “the same”. Typically, all one needs is one or two unique improvements over the existing prior art to qualify for a patent. How “strong” that patent could end up being in the face of a future challenge is impossible to predict. This is where that professional opinion comes in. As I said at the outset, if you’re REALLY convinced to you may be onto something, spending the 600 bucks COULD be well worth it. On the other hand, as many members here will tell you, you can always submit your idea to EN for 20 bucks and let them handle it all. Of course if you do decide to do that you’ll want to include all the prior art that you’ve uncovered as part of your submission. If you get a red X at step 3 (Initial IP Review) then you can probably assume that your original concern was validated and the idea simply wasn’t unique enough. But you never know. If during the submission review the folks at EN get the sense that your idea has a chance of REAL commercial success, I think they’ll probably try their best to find some sort of patentable “angle” if you will. You savvy Kemosabe? ;)

That is good info to know Bob…..I may have run into a problem that this answer somewhat addresses.

I am not an attorney.

It depends on what you mean by ‘similar’. You can get a patent on something that is a non-obvious improvement on existing patented inventions.

However, if you have something that provides the same features/functions as an existing patent, but achieves it in a slightly different way that does not really improve the featrures/functions, it could be very difficult if not impossible to get a patent.

Go to Google Patents and do a search for almost anything. You will see many patents list “prior art” or “references cited” (existing patents) and then go on to tell you why their invention is an improvement over the prior art.

Well, if it’s patented (or otherwise known to the public) it is not patentable. If the patent is active, you would infringe if you commercialize the product. If it is expired, you can commercialize it but so can anybody else.

I am not an attorney. I am not an agent.

I’m no attorney, the only thing I would suggest is to do a patent search. You will need to probably hire someone to do it, no idea of the cost nowadays. Back in 2002/03, a patent search from my patent agent was about $595US. I hope this helps. I’m on the other side of the fense as I have had a patent since 2003 and am now finding other patent pending products in the market place..sigh. Mine is an interestingly long story..lol! Good luck!

James and Kelce thanks for the info…. LOL.. Great response….

I can’t give advice or represent anyone.

I’ll comment in passing, though, that back when I was in college, a lot of girls turned down my requests for a date with the same reason: They already had a boyfriend.

The best person to answer this is Kelce. He is an IP attorney. What did you want to do with it?