Mastic, NY asked in Patents (Intellectual Property) for New York

Q: What happens if I received my patent already and another person just received theirs but their filing date was earlier?

1 Lawyer Answer
Kevin E. Flynn
Kevin E. Flynn
  • Patents Lawyer
  • Chapel Hill, NC
  • Licensed in New York

A: I used to work for a firm that defended the original Bell telephone patent court (long long before I was born). So I am well aware that improvements to a particular device such as a telephone may continue to come out for a hundred years or so. It is possible that your patent claims one set of improvements to a particular device and this other patent claims different improvements for the same device. So even though the title of the patents may be close or the overall description and introductory figures for the device may be close when comparing the two patents--it is possible that the specific thing you claimed is different than the specific thing claimed in this other patent.

Your patent attorney should be able to answer that question.

If for some reason, the patent office made a mistake and there are two issued patents for the same good idea, then one patent will prevail over the other. A patent application may claim priority back to one or more earlier patent applications. As the earliest patent applications may have less detail than the later applications, it can take a bit of work to sort out which family of patents had the first application on file that had adequate details to support the issued claims. The general rule is that patent application family with the earliest filing date of a sufficiently detailed application would win any disputes on overlapping claims.

There is a further complication. If one person filing a patent application (call him A) received information that came from the other person (call her B). To the extent that the first person-A to file a patent application was actually filing a patent application on the ideas of the second person-B who later files a patent application -- then the real inventor-B who was the second to file a patent application can prove those facts and prevail.

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

Kevin E Flynn

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