Chester, VA asked in Intellectual Property and Patents (Intellectual Property) for Virginia

Q: What happens if you come across an invention w/status of "abandoned" on the application? Can you move forward with it?

Application was submitted in 2012. Abandoned status in 2014. I noticed that the product has been manufactured in China and available to import.

1 Lawyer Answer
Kevin E. Flynn
Kevin E. Flynn
  • Patents Lawyer
  • Pittsboro, NC

A: If an application is abandoned far enough back that it is not a situation where the response was lost in the mail (and may be revived), then you should check three things.

1) Sometimes when things are not going well, an applicant will file a continuation or a continuation-in-part and continue seeking patent protection under that new serial number. If you look at the application that is abandoned in Public PAIR -- you can check the tab labelled continuity data to see if this has happened. If so, you will want to look and see whether any other patents were issued in this family.

2) If the first patent application of interest was abandoned, then it is possible that they abandoned that application as there was prior art that claimed the same invention. You can see the arguments made to reject the now abandoned application by looking at the PDF files in the Image File Wrapper tab on Public PAIR. If the relevant prior art is relatively new and not expired, then you need to look to see whether the relevant prior art patents impact your plans.

3) Even if this one abandoned patent application does not point towards any other problems, you may want to look for additional prior art. My slide set at is a good start. You may want to do forward chaining to look for other patents or pending applications that cite to the published application that you found as these may be particularly relevant (forward chaining is explained in the slide set).

I hope this helps.

Kevin E Flynn

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