Standing Out from the Crowd: Strategies for Differentiating Your Invention from Prior Art

When Robert Kearns invented the intermittent windshield wiper in 1964, existing continuous wipers posed a serious challenge to the novelty of his start-stop technology. But by emphasizing the unique benefits of his method, like accommodating varying rain conditions, Kearns distinguished his invention enough to get patented. The story of Robert Kearns and his battle to enforce his patent with the “Big 3” automakers was captured in a 1993 article in “New Yorker” magazine, and it was later converted into a full-length feature film starring Greg Kinnear, “Flash of Genius”. Like Kearns, all inventors must overcome their toughest competition by asking: how can I differentiate my invention apart from the closest prior art?

With over 11 million issued U.S. patents, similar inventions invariably exist in the public domain. You can’t make prior art disappear – but you can strategically differentiate.

Keys to Differentiating Your Invention in the Eyes of the Patent Office

According to patent consultants at Global Patent Solutions LLC (GPS), considerations for distinguishing your invention include:

• Highlight unexpected advantages, superior properties, or surprising capabilities exceeding the closest prior art.
• Emphasize different physical configurations, arrangements of components, or integration into larger systems.
• If combining prior art, show why the new combination eliminates disadvantages of earlier approaches.
• For process inventions, detail improved workflows, steps, and enhanced techniques compared to predecessors.
• With software, distinguish structural/functional differences and non-obvious algorithmic variations.
• Draft meticulous claims focused on overlooked aspects not fully claimed earlier.

Standing on the shoulders of prior inventors need not undermine your own patentability. With savvy positioning, even slight deviations from preceding work can support non-obviousness – steering clear of rejections.

Don’t let your invention get lost in the crowd. Be sure to carve out your niche by playing up enhancements and contrasts compared to close prior art. Because progress marches on, as long as you move beyond the steps before you.

This article is part of a series entitled “A Guide to Protecting Your Innovations”.  To start the series at the beginning, click here.

Next up in our series, we answer the question: “What experiments or data do we need to overcome an obviousness rejection?”