If my invention is similar to a patented product, can I still file an application?

I recently came up with an invention that is similar to another product on the market. I do not want to violate any copywright laws, but I am not sure how to go about avoiding any mishaps. What are the steps I need to take to avoid any issues?

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Answered By: Mark S. Hubert PC

First if it is an invention you are worried about patent infringement not copyright infringement. Second I would suggest you hire a patent agent or attorney to do an infringement opinion for you.

Answer Applies to: Oregon
Replied: 8/22/2011

Disclaimer: The response above does not form an attorney-client relationship. This answer may or may not apply to you and should not be relied upon as legal advice. LawQA does not make any representation as to the expertise or qualifications of this attorney. This attorney may or may not be admitted to state bar of your state.

Answered By: Intellectual Property Center, LLC

First step is to contact an attorney. You mention both copyright and patent, therefore, the first step is to have an attorney determine which area of the law would apply and then provide some guidance for you related to protecting and the ability to protect your product. Of course you can go to our website or a number of resources on-line for additional information. Good Luck.

Answer Applies to: Kansas
Replied: 8/22/2011

Disclaimer: The response above does not form an attorney-client relationship. This answer may or may not apply to you and should not be relied upon as legal advice. LawQA does not make any representation as to the expertise or qualifications of this attorney. This attorney may or may not be admitted to state bar of your state.

Answered By: Barton Barton & Plotkin

In order to obtain a patent you must establish that your product is different from any other product in the prior art. You must also show that any difference or improvements in you product are not obvious. To meet this burden you must retain counsel to search and review the prior art including other products, patents and publications. Thus, if you want to proceed you must retain counsel.

Answer Applies to: New York
Replied: 8/19/2011

Disclaimer: The response above does not form an attorney-client relationship. This answer may or may not apply to you and should not be relied upon as legal advice. LawQA does not make any representation as to the expertise or qualifications of this attorney. This attorney may or may not be admitted to state bar of your state.

Answered By: The Law Offices of Mark Trenner

An experienced patent attorney can help you determine whether your invention is patentably distinct over the prior art, including other patents. Note that the issue of infringing on another's patent is different than whether your invention is sufficiently unique to apply for a patent application. For both of these issues (patentability and infringement), it is best to work with a patent attorney rather than try to figure it out for yourself.

Answer Applies to: Colorado
Replied: 8/19/2011

Disclaimer: The response above does not form an attorney-client relationship. This answer may or may not apply to you and should not be relied upon as legal advice. LawQA does not make any representation as to the expertise or qualifications of this attorney. This attorney may or may not be admitted to state bar of your state.

Answered By: DANIEL NESBITT

Copyright law and patent law are different and distinct. It is possible to modify an existing product in the market and arrive at a patentable new product. You'll want to work the details with a patent attorney to get a legal opinion of patentability. It is also possible that modifying an existing product in the market, and then selling the modified product, violates or infringes a patent that covers the existing product. Again, you'll want to work the details with a patent attorney to get a legal opinion of infringement (and validity) of such patent.

Answer Applies to: Ohio
Replied: 8/19/2011

Disclaimer: The response above does not form an attorney-client relationship. This answer may or may not apply to you and should not be relied upon as legal advice. LawQA does not make any representation as to the expertise or qualifications of this attorney. This attorney may or may not be admitted to state bar of your state.

Answered By: Law Offices of Robert S. Smith

Yes you can file an application for anything. However, the real issue is whether you will be able to get the application to mature into a patent. The patent statute provides that no patent should issue if the structure or method is obvious to a person skilled in the field to which it relates. The United States Patent and Trademark Office in applying the statute will consider a variety of devices and will sometimes argue that a person skilled in the field would possess the knowledge about such other devices and will sometimes argue this knowledge would make your apparatus obvious. The United States Patent and Trademark Office will consider any publication, particularly publications more than one year prior to any application that shows similar structures. It is irrelevant under the patent statute that something that is described in a publication has not been commercially developed, is not on the market today or is not known to you. To obtain a patent, it is essential that the structure not be obvious to a person skilled in the field to which it relates.

Answer Applies to: Connecticut
Replied: 8/19/2011

Disclaimer: The response above does not form an attorney-client relationship. This answer may or may not apply to you and should not be relied upon as legal advice. LawQA does not make any representation as to the expertise or qualifications of this attorney. This attorney may or may not be admitted to state bar of your state.