Recently, I received an email from a client who is in the middle of a patent prosecution process. He emailed me some new pictures of his invention... only I was a bit confused because his invention looked a lot different from how it was described in the application.
He told me, "I didn't make too many change... I would still receive patent protection, right?" Unfortunately, I told him "No. You actually did make too many changes... I don't think the new version of your invention would be protected."
As I predicted, his response wasn't a too happy one.
He said, "What do you mean this won't be protected? I spent so much money on this already!" So I had to explain to him, "Well it's okay to make minor changes here and there, but once you eliminate or change the essential elements of your invention, then it becomes hard for your patent to read on your invention. Your invention no longer becomes what you claimed in your patent."
The client said, "Well, can't I just add more information to the current one?" I said, "No. You can't just simply add new information. It's not allowed."
Normally, if inventors make improvements on their inventions, I advise them to consider filing a continuation-in-part (CIP) application, which allows inventors to disclose everything they've disclosed, plus new information that was not disclosed before. But in this case, a CIP wasn't even appropriate because the new version of his invention was nothing like the original invention. Even if he were to file a CIP, he would have likely received a restriction so he couldn't have protected both new and old versions of his invention anyway.
I told the client, "If you want, you can still continue with your application as it stands. If you ever decide to go back to your original design, your current application will definitely protect it once it registers. Or, you can abandon this application and file a new one." Well, the client didn't like either of these choices. He said he would talk to another attorney. I told him that was fine but any patent attorney would tell him the same thing. You can't add new information to your current outstanding information.
This is why I add as much detail as possible. I usually use languages like, "It is further contemplated that the present invention may be used with..." or "In other embodiments, the present invention may comprise..." to account for possible improvements or changes with the invention.
While I try to broaden the scope of invention as much as possible, sometimes there are situations where you have to accept that your invention just isn't going to be protected under a patent... either because you've made enough changes to it over time, or because it no longer contains all of the elements of your claims. This is why some people hold multiple patents to what seems to be the same invention. Sure. It will cost you. But the return of your investment can be great and it might be worthwhile.