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Patent expiration

Posted by Anonymous . updated on 2/26/2009
Hi

I have been using a product that has had a patent recently expire. The patent was for a unique feature incorporated into the design.

I am looking at improving this product that I use regularly and have now developed my own product that whilst looks similar to what I have been using does not contain the original patented design. I consider my product superior to what I have been using even though it appears very similar to the product I have been using.

Questions
Given the patent having expired - am I now entitled to produce and market my product that is similar to the product I have been using?

Is it possible for me to actually patent my own product now? I am mindful that there are similarities between both products however there are some differences as well?

Sorry if this appears vague but I would appreciate some response before I consider further action. I have actually been advised to perform a prior art search and also spend a considerable sum ensuring there is no infringement on my intention on using this new product.
Given the patent expiration do I need to be concerned?

Thankyou
Answers (23)
 
Richard...
If a patent has expired (call it the '001 patent) then you don't have to be concerned about infringing it.  Whether or not your product infringes other patents, I have no way of knowing.

Regarding patenting your product:
-  If you have already marketed it, you have lost the opportunity to patent the product in most countries of the world.
-  If you have been marketing your product for 1 year, you have lost the opportunity to patent the product in the USA.

Regarding similarities between your product and the earlier product or the '001 patent:  similarities may make your product obvious, and therefor not patentable.

You can do your own prior art search for free using the US Patent and Trademark web site, or the web site of other nations and organizations, or by a search of technical literature at a university library.  Your prior art search will be less comprehensive that a professional, but it will at least give you some indication of what prior art exists.

- Richard
 
 
Frozen_...
The earlier you get good advise, the more you can save.

M. Arthur Auslander
Auslander & Thomas-Intellectual Property Law Since 1909
3008 Johnson Ave., New York, NY 10463
7185430266, aus@auslander.com
ELAINE's Workshop?
E arly L egal A dvice I s N ot E xpensive?
Reality Check?
 
 
Ken
How can you determine if a patent is abandon?
 
 
jkudla
Also keep in mind that even if a patent lapses due to failure to pay a Maintenance Fee, it is possible to re-instate it by petition and paying the appropriate fees.


If your question was more so about determining patent term, in general just add 20 years to the filing date of the earliest non-provisional application, ?for applications filed after 6/8/95. But you ought to consult appropriately trained patent counsel to determine the exact date - calculating patent term is not rocket science but there are various situations to take into account that the amateur can easily overlook or not apply properly - patent term adjustment, foreign priority, terminal disclaimers etc.
 
 
Ken
Then if a patent expires for non payment of fees, can that patent be acquired by someone else not originally on the patent filing?
 
 
jkudla
Quote
Then if a patent expires for non payment of fees, can that patent be acquired by someone else not originally on the patent filing?


No, expired patents can not merely be purchased by third parties. You could certainly send a letter to the owner as indicated by the fee address and inquire. It is also possible to do that with non-expired patents, as well.
 
 
Ken
jkudla

Thanks for the info. Maybe I just need to reinvent the wheel.

Thanks again
 
 
Doug
Quote
Also keep in mind that even if a patent lapses due to failure to pay a Maintenance Fee, it is possible to re-instate it by petition and paying the appropriate fees.


If your question was more so about determining patent term, in general just add 20 years to the filing date of the earliest non-provisional application, ?for applications filed after 6/8/95. But you ought to consult appropriately trained patent counsel to determine the exact date - calculating patent term is not rocket science but there are various situations to take into account that the amateur can easily overlook or not apply properly - patent term adjustment, foreign priority, terminal disclaimers etc.



Question:

If a patent has expired due to non-payment of fees.
Someone now creates a product that uses techknowedgy that was orinally covered by that patent.

Is that person clear of infringment problem since the patent has expired?

If the original patent hold comes back and refiles to get the patent reinstated.

Is that person clear of infringment problem since the patent had expired when they started there product?

What would a person need to do to prove they started during the expired period of the patent?


 
 
voxr
sorry my bad techknowedgy=technology ?(dont' ask)

Quote


Question:

If a patent has expired due to non-payment of fees.
Someone now creates a product that uses techknowedgy that was orinally covered by that patent.

Is that person clear of infringment problem since the patent has expired?

If the original patent hold comes back and refiles to get the patent reinstated.

Is that person clear of infringment problem since the patent had expired when they started there product?

What would a person need to do to prove they started during the expired period of the patent?



 
 
Isaac
The US patent statutes allow someone in the position of
having manufactured a product during the period while an
applicable patent was unenforceable due to late payment of
maintenance fees some relief against being sued if the patent
holder is able to meet the requirements for getting the patent
reinstated.  Essentially the infringer under the right situation
gets to sell the stuff he manufactured or had substantially
prepared to manufacture during the limbo period.

There are some subtle issues involved so please get some
real legal advice and don't rely on this general discussion.
 
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