Patent Attorney and Founder
Can You Patent Something That Already Exists But Was Never Patented?
No, you can’t. To get a patent, your idea has to be new, original, and your own. If someone else already created it—even if they never patented it—you can’t just claim it. It doesn’t matter if you were the first in your family, community, or industry to see it. You have to be the actual inventor.
Also, patents can’t cover things that were already public before your filing date. When you apply, examiners check both patents and non-patent sources to see if your idea already existed. They look at what people in your field would reasonably have access to. If it’s out there, even informally, you can’t patent it.
What If You Don’t Patent Your Idea?
You don’t need a patent to succeed, but skipping it comes with risks. Without one, competitors can copy and sell your product freely. Some businesses choose to launch first and deal with competition later, but that strategy isn’t for everyone. If your idea is easy to reverse engineer, you could lose your advantage fast.
However, not every invention needs a patent. Some companies rely on trade secrets instead. Boeing, for example, keeps its carbon fiber manufacturing process secret. Even if someone buys and takes apart a Boeing plane, they won’t be able to figure out the exact method used to make the materials.
Another option is licensing your know-how. Instead of patenting, you can sell or share your process under contracts that protect your knowledge. Some companies, especially startups coming out of universities, do this to profit from their innovations without going through the patent system.
What’s the Purpose of a Trademark?
A trademark protects your brand, not just your business name. The name you register with the state isn’t the same as a trademark. For example, our law firm’s legal name is “Bold IP PLC,” but our trademark is “Bold Patents.” The trademark is what customers recognize and associate with our services.
Registering a trademark keeps others from using a confusingly similar name. If you sell products or services across state lines, a trademark helps prevent customer confusion and protects your brand identity. That’s why big companies prioritize trademarking their brand names. Ivory soap, for example, is a registered trademark. If another company tried to use the name “Ivory” for soap, they’d likely face legal trouble.
Can Small Changes Help Avoid Patent Infringement?
If a product is patented, you can’t just make minor tweaks—like changing a screw’s position—and assume you’re in the clear. Patent protection is based on claims, which are specific parts of the patent that define what’s protected. The claims are usually at the end of the patent document.
To check if you’re infringing, you need to compare your product to the independent claims in the patent. If your product includes all the key elements of a claim, you could be infringing—even if you’ve changed small details. The only way to be sure is to have a patent attorney review it.
If you’re launching a product and worried about infringement, you can get a freedom-to-operate (FTO) opinion. This is a legal review that assesses whether your product is at risk of violating existing patents. Investors and manufacturers often require this before moving forward with production.