Is my idea patentable?
I want to use several already patented hardware technologies and combine them creating software from licencee software middleware and sdk to create a new form of social interaction is my idea patentable and what do I patent. There are several companies offering their hardware technology as developer kits and software developer kits, and several companies offering middleware for inegration in software/game development. I want to combine them to create a new hardware/software technology that doesn't exist yet. Can I patent it and what can I patent and not patent
Let's first summarize some of the rather generous information already posed.
- I would also advise that you should consult with a patent attorney, but there are some things you might consider in preparing for and conducting that consultation:
- Patents do not provide YOU with the right to make, use or sell an invention; rather, they enable you to keep OTHERS from making, using or selling your CLAIMED invention. So making, using or selling (m/u/s) your "patented invention" or some improvement down the line might nevertheless infringe someone else's patent and someone else m/u/s theirs might nevertheless infringe your patent.
- Your use of stock "parts" does not in itself prevent you from getting a patent. At the end of the day, an invention must be new & useful, novel and non-obvious in order to be patentable. So roadblocks include, e.g., prior worldwide publications & prior patents/applications, Your success in seeking a patent will also likely depend on the manner in which yours AND THE EXISTING components, system(s), method steps, method(s) and/or results are disclosed, claimed... and examined.
- While the invention disclosure in a patent application (abstract, description, drawings, etc.) should provide "sufficient" support for and may be used to explain them, patent protection ultimately extends to your invention AS SET FORTH IN YOUR CLAIMS. As to the opinions that were directed to the breadth of your claims (broad or narrow), there are many STRATEGIES regarding breadth, organization, wording, use of dependent claims, testing the examiner, use of picture claims (including details of the manner in which you might build at some point), preparing for fallback positions, etc. So keep in mind that your entire application(s) ALSO attempt to persuade or argue as to why you should be granted a patent. While the thoughts/opinions here are inciteful and useful, strategy or strategies considered during consultation(s) with your patent attorney will very likely be more pertinent.
- As to getting around your claims, it can happen... BUT exploring what your invention is about (abstracting) rather than only the specific build according to specific available parts often helps and is very often a part of preparation for and conducting of attorney-client consultation. (Some clients instead prefer to simply go literal and narrow... and for various practical/strategic reasons).
- To patent or not to patent?: Perhaps the question is more to APPLY or not to apply... or to invite the effort of preparation &/or prosecution - or not... or to consider the various alternatives available to you at this point, as well as their impact should you proceed yourself, seek funding, seek a manufacturer, be charged with infringement, etc. So it appears that you would have much to discuss should you consult with a registered patent attorney/agent.
You raise some very interesting questions. Unfortunately, at this point I would give you the typical patent lawyer answer of "It depends," which I know is not what you are looking for but it the truest answer based solely on the information provided above. If you would like to discuss this in more detail, please just let me know, I would be happy to speak with you at your convenience.
Albert, the answer to your question depends on a number of facts that will need to be explored with you in more depth that we can do here. Whether you will be able to patent your idea will depend on: (a) the scope of the previous patents; (b) whether there are any existing inventions that have been patented that do exactly what your idea does (in patent lingo, whether there is "prior art;" and (c) whether your idea would be (once again, in patent lingo, considered "obvious"). Those questions could likely be answered after consulting with a patent attorney. Feel free to contact me if you want to discuss.
This is a very complex question and you should consult with a qualified IP attorney.
It may not be patentable.
If your new software is a mosaic of existing elements, giving a predictable result, it will not be patentable. A patentable invention contains an unexpected result.
With respect to Sinisa's comment, if the claims in your patent are broad, then it will be more difficult for someone else to avoid infringing your patent.
I am a patent attorney. Ethically, I am unable to provide you with legal advice unless you are a client. However, to give you a general idea, you can combine existing patented inventions to come up with a new patentable subject matter (i.e., if your invention is not obvious in view of the existing products and is not a mental process or a law of nature). However, receiving a patent does not necessarily mean that you are not infringing someone else's patent.
If you have any follow up questions, please feel free to personal message me.
Arash Behravesh, Esq.*
Admitted in DC, MA, and USPTO.
Lot's of thoughts about this. However I think your best bet would be to speak with Dave Sigalow our Copyright, Trademark and patent attorney at Allan, Dyer, Doppelt
Not trying to avoid the question Just offering, what I beleive would be in your best interests as this area of law is complicated .
Basing a new product/service on top of patented technologies does not stop you from getting your idea patented as well, as you are using already paying the "patent fees" by using them (paying commercial price for those products) as a part of your solutions and are not infringing into the existing patents.
On the topic of patents, you can patent various things, but getting patent go through might be a tricky process (you need to consult with a patent attorney). And somewhat costly, with minimal effect on the business side.
Sometimes its just better to push things onto the market and forget about patenting, because 'clever' people will know how to avoid your patent and create a similar product if the market you are going into is interesting.
I.e. creating a patent claim that uses some IBM and CISCO hardware to create a new services, will easily be avoided by including similar SUN MS solution instead IBM.
And if you are simply using APIs provided from third parties to create a combined SDK without generating a specific innovation (something of your own) within the solution your patent claim might be denied.
In the end I do not know what your patent is all about so you need to go to an expert and consult directly.
All your questions need to be posed to a patent attorney. They will have to conduct a patent search and analysis to be able to tell you (a) can your idea be patented, (b) portions of it you can patent, (c) are you infringing on the other patents and (d) what's the best strategy for applying for a patent, if it is at all feasible.
It would be ill-advised for anyone attorney or non-attorney to attempt to answer your question or counsel you with any advise in a forum such as this.