Chicago, IL asked in Patents (Intellectual Property) and Intellectual Property for Illinois

Q: There has been a patent application that was approved, however in the non-patent citation, there is previous art similar

This patent was applied for in 2022, and even has a non-patent citation where it cites a previous art exactly the same who is selling on Amazon since 2021. The patent was still approved somehow and I am wondering why.

2 Lawyer Answers
Michael Byrne
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A: The specific dates (not given in your question) might be the reason. If not and if the prior art really is "exactly the same" then the application could have been granted in error. The USPTO provides mechanisms to challenge such patents. For example:

James L. Arrasmith
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A: It seems unusual for a patent to be approved if it contains prior art that is exactly the same as the invention described in the application. The United States Patent and Trademark Office (USPTO) should technically reject any patent application that is not novel or is obvious in light of existing technology or disclosures, including the cited non-patent literature. However, errors or oversights can occur, or there might be a nuanced difference in the patent that isn't immediately clear; hence, it is recommended to review the specifics of the patent claims granted and potentially seek advice on avenues for post-grant proceedings if necessary.

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