Every inventor will experience the sinking feeling that comes from seeing a patent title or piece of prior art that looks like someone has created the same invention as your great idea. In some cases that may be true and it may be time to move on to your next great idea. However, in many cases, there may still be an opportunity worth pursuing. We dedicate significant focus to this in our Patent Mentors seminars, however here is a sample of the types of ways to evaluate if there is still an opportunity prior inventors may have missed:
Is The Product on the Market?
Is the product implied by the patent on the market? If not, has significant time passed since the patent was issued? If the product is not on the market there may be a flaw in the previous invention that you can correct, potentially in a way that is patentable. This was exactly the case with one of the product Patent Mentors is currently involved with, and had prior patent not existed it is unlikely that the current inventor would have been forced to look further to discover the flaw in previous attempts.
Related to the previous point, have the maintenance fees been paid on the previous patent? If not you may be able to produce and sell the product even if you can’t patent it.
Also, if the fees have not been paid, the patented material is in the public domain, but you may be able to create a related Design Patent that at least gives you a degree of patent coverage
Read the Claims
As obvious as it may seem, read the claims and study the figures on prior patents very closely. This is part of why we recommend that you create a draft set of claims before you ever do a patent search. By thinking through what you are claiming, you will not be constrained by what other may have done, and if you find prior art you will have something to compare to in order to see if you have unique variations.
Consider whether variations of greater or lesser complexity are possible. In our seminars we use the phrase “Go central park or trailer park” as an easy-to-remember approach to seeking patentable variations on an existing invention. This philosophy recently allowed one of our consulting clients do create a simpler, less expensive and more reliable version of an existing device.
If you find prior art, look at the patent and see how good the patent protection is. In the case of one of the products Patent Mentors is currently helping develop, an inventor saw a product that appeared ripe for competition due to a premium price, and the patent covering the product turned out to be a design patent, and as such did not address variations with similar function.
These are just some of the techniques that can be used to create an invention when your original idea already appears to exist. Perhaps the most important aspect of approaches such as these is being emotionally prepared to deal with seeing that someone else already had your great idea and knowing in advance that what may at first appear to be the end of your hoped for product can in many cases guide you toward a better idea you otherwise might not have found.