Pittsburgh, PA asked in Patents (Intellectual Property) for Pennsylvania

Q: Can I take someone’s patent if it’s abandoned?

1 Lawyer Answer
Kevin E. Flynn
Kevin E. Flynn
PREMIUM
Answered
  • Patents Lawyer
  • Chapel Hill, NC

A: If you mean by "take" that you can pursue the patent process and obtain an issued patent and preclude others from practicing the invention. The answer is no as you were not the first to invent whatever is in the abandoned patent.

If you mean by "take" that you can make or use the ideas in the abandoned patent application, then the answer is yes as an abandoned application cannot be used to stop you from doing what is in that application. (There may be more basic patents out there that apply but that is not your question).

Beware that the patent process in the US is fairly lenient in allowing someone to claim that the failure to act in time to prevent an abandonment was unintentional. With the payment of a fee, a person can restart the process. This happens all the time in failures to pay the maintenance fees.

So you may want to consult with a patent attorney to look at the precise facts that led to the abandonment to see if there is any argument that the failure to act was unintentional. You may find that the patent application was abandoned as someone else had already patented this idea. Now you need to sort out whether that earlier patent is still in force.

If you found this answer helpful, you may want to look at my answers to other questions about patent law are available at the bottom of my profile page at

https://lawyers.justia.com/lawyer/kevin-e-flynn-880338

Kevin E Flynn

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