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

Q: When filing a Provisional Patent Application or Patent and the application builds on or supersedes a patent that has

lapsed due to non-payment of fees or failure to respond to the patent office, does the new filing have to answer claims made by previous, lapsed patents? Is the new filing beholding to the lapsed patents in any way?

1 Lawyer Answer
Kathryn Perales
Kathryn Perales
  • Patents Lawyer
  • Oberlin, OH

A: If a patent or patent application has been abandoned, then you don't have to worry about infringing it - nothing you do now would infringe. If the abandonment happened recently, you'll want to figure out whether the applicant still has a chance to revive or appeal, and keep an eye on it.

If the timeline of your invention coincided at all in the past with a period when the other patent was granted and in force, there could be claims from that time. But not now. There also could be issues if you ever worked with or for or had some contractual relationship with that inventor, and they're claiming that you took their ideas in some way.

Anything revealed in the lapsed patent or patent application is prior art. But, if you have a patentable improvement to it, you might be able to get your patent granted.

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