Can you patent an improvement to an existing product?

Almost all inventions make use of existing concepts or products. Whether it is a new type of watch design that improves upon the original design of the watch or an innovative type of water bottle that can keep liquids cold for longer, new inventions are almost always improvements of tangible things or processes that already exist in some form.

One question inventors may have is whether they can obtain a patent for an improvement to an existing product? In short, so long as an inventor can demonstrate to the United States Patent and Trademark Office (USPTO) that their invention is “something new or unobvious as compared to the existing issued patents and/or patent applications” a patent can be obtained for an improvement to an existing product. (1).

In order for an improvement to be considered non-obvious by the USPTO, it does not mean that the invention has to be unconceivable by the inventors of the original design. Rather, a non-obvious improvement is one that is not readily apparent or is one that is not simply a minor improvement over the original design. For example, the invention of the colored TV, improving on the design of black-and-white TV was considered a non-obvious improvement, despite it being a conceivable invention at the time. Similarly, the invention of touch-screen smartphones was a non-obvious improvement of the original analog controlled cell phone.  

A critical aspect of determining whether you can receive a patent for an improvement to an existing product is something called a prior art search. A prior art search is a detailed investigation, often by a patent attorney, into existing inventions which overlap with the improved invention. This necessary step in the patent application process is a great opportunity for an inventor to assess their likelihood of obtaining the patent and to make adjustments to the improvement based on existing prior art.

For improvements that closely resemble existing prior art, inventors will likely experience some friction in the patent application process through the USPTO. Most often, this means that during your first application to the USPTO, the examiner is more likely to reject your claims the greater their similarity to existing ones. (1). However, “[t]his can be overcome by changing the claims to distinguish over the prior art cited by the examiner.” (1).

Interestingly, in addition to making improvements to existing inventions, in rare instances, inventors can obtain a patent for using an existing product for a different use. One example of this was “in 2000, [when] the Federal Circuit allowed a patent for the idea of using Bag Balm - - an ointment normally used to soothe irritated cow udders – to treat human baldness. The court found it patentable because it’s a new use of a known composition.” (2).

With the help of a patent attorney, an inventor can effectively distinguish their improvement from existing prior art and go on to obtain a patent for their invention.

Sources

1. https://www.cohnpatents.com/2019/02/12/how-to-patent-an-improvement-on-an-existing-product/
2. https://www.nolo.com/legal-encyclopedia/improvement-patents-new-use-patents-30250.html

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