can you patent an improvement ?

to someone else's patent

3 Answers

  • 1 decade ago
    Favorite Answer

    You can patent an improvement to another patent that is not obvious in light of the other patent or any other prior art. Under the patent laws, an invention is not patentable if "the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains." 35 U.S.C. 103(a). But this begs the question of what is "obvious." The problem is that the common sense idea of what is obvious, and the legal framework for determining it are quite divergent. And seemingly every few years the United States Court of Appeals for the Federal Circuit (which handles appeals in patent litigation) modifies in a significant way the test for obviousness.

    There are literally hundreds of reported opinions in federal cases discussing obviousness, and a full treatment of the subject is beyond what we can address here. In fact, it could occupy a significant portion of a semester-long course in patent law.

    [The purpose of this post is to give a general understanding of the law; not to provide specific advice. While a great deal of care has been taken to provide accurate and current information, the ideas, general principles and conclusions presented in this post may differ depending on local, state and federal laws and regulations and court cases. Because the law constantly changes and varies from jurisdiction to jurisdiction, and is subject to varying interpretations, the reader is urged to consult professional legal counsel in his or her state regarding the applicability any points of law discussed in this post to any specific problem. This post should not be used as a substitute for competent legal advice, and should not be construed as having created an attorney-client relationship.]

  • 1 decade ago

    Yes, I would say that most of the patents that are filed are improvements, if not to someone else's patent then to someone else's idea.

    There are very few totally original inventions.

  • 1 decade ago

    You need to talk to a lawyer about that, you can't rely on people telling you stuff here on that. Common sense says yes, but law is not common sense.

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