Corona, CA asked in Intellectual Property for California

Q: Later utility patent adds claims to an expired patent - is previous claims protected again or only delta is covered

I have a technology for which the patent is expired. A later patent filed by another group used added something new to the old technology. Is the technology covered in the old patent (without the additional changes) is still public domain? E.g. I patent chair. The patent on the chair expires. someone else takes my chair and adds wheels and patents it. Can I still make the chair (without wheels) without infringement?

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1 Lawyer Answer

A: Generally, for infringement to occur the product being analyzed will infringe a patent if the product being analyzed contains all the features defined in a claim of an active patent. This is called literal infringement. (Example: if the analyzed product has features A, B, and C (with or without other features) and the patent claim has features A, B, C, and D, then the analyzed product does not literally infringe because the analyzed product does not have all the features defined in the claim, because the analyzed product is missing D). Or, there can infringement if the features in the analyzed product are the same as or equivalent to all the claimed elements of a claim of an active patent. This is infringement under the doctrine of equivalents. Web search the term “literal patent infringement” and you will find law firm blogs which explain the issue more fully.

Definitely consider a true and full analysis from a patent lawyer.

This answer includes generalizations and there are many caveats. This answer does not form an attorney client relationship. Consider hiring an attorney to analyze the specific facts to your situation.

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