Patenting the absence of a feature

You cannot patent:

An [existing product] not including [something that has been removed]

Product patents only protect “new features” you are adding. By focussing on removal of a feature, you’re going in the opposite direction.

It may be that the existing product was never offered with the superfluous feature removed therefrom. But, arguing that absence of the feature is “new”, simply takes you further from your goal of securing a patent. Don’t go there. It’s also likely that, at some stage during the production process, the feature was yet to be added, and that its absence was therefore “known”.

Patent absence of a feature

Instead, focus back on features you are “adding”. For example, a toy motorbike may be a motorbike (albeit somewhat smaller) without the engine. Ignore the obvious facts that your toy motorbike is: smaller; and excludes the engine – neither of these are “new features” you are “adding”. Instead consider why a shrunken, de-engined motorbike would not work as a toy, and highlight the features you have added to make it better-suited as a toy. For instance, a scaled-down de-engined motorbike would likely topple-over when unsupported; and this may be infuriating to a toddler. So, your tyres may be “flattened” to provide a right circular cylindrical surface at their radial periphery. This planar cylindrical surface may well be your “new feature” – something you can point to, which you will not find on an existing motorbike.

Then, take this further, i.e.:

wherein the [axial length of the right circular cylindrical surface] / [diameter of the wheel] is greater than 0.3.

For further tips on how to draft a patent, see our Patent Template.

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