Can I Patent a New Way of Using an Existing Product?

Can I Patent a New Way of Using an Existing Product?

Lately, we have had several inquiries about whether it is possible to patent a new way of using an existing product.  The answer is “yes”.  This type of patent is typically called a “method of use” patent.”  A method of use patent has claims that recite a sequence of steps, and in some cases, the steps may be carried out using an existing product. Of course, the method itself must be novel and non-obvious, which is required to obtain a US patent for any invention.

With a method of use patent, it is important to understand that you cannot stop people from merely selling the existing product or from using it with existing methods.  You can stop people from selling the product and instructing customers to infringe the method of use patent with the intent that they do so.  This is called “active inducement of infringement,” which is a form of “indirect infringement.”  The “direct” infringers are the customers because they actually perform the patented method, but since they are likely your customers also, it is preferable to sue those who sell the product and encourage your customers to use it to perform your patented method of use. 

Unlike direct infringement, a party can only be liable for inducement of infringement if it was aware of the method of use patent.  This and the requirement of proving intent make it somewhat more difficult to successfully sue for inducement of infringement than direct infringement. Nevertheless, it is a good option when your invention involves repurposing an existing product.

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