A well known but

unpatented idea may

not be patented,

because it violates the

"novelty" requirement

of the patent law.

FAQ Competing Patents
...how to deal with patent infringement 
 
Can I patent a well known, but unpatented idea?

If your new idea does not offer any new improvements to an existing idea, then the answer would be no. Simply stating, your invention must be different from form what is already known to the public to satisfy the "novelty" and "unobviousness" requirements of the patent law. The same is applicable to ideas that are covered by expired patents, they will be classified as prior art blocking patentability of your invention.

What is prior art?

The term prior art could mean an opposing patent. In fact,  the meaning of this term is much broader. It could  represent patents, publications, and documented use or offers for sale of items that are relevant to determining scope and patentability of your invention.

Is there a difference between a filing date and a priority date?

Yes. The filing date refers to a specific date on which the patent application was filed. The priority date refers to the place in line your invention holds in relation to any competing prior art. For this reason, the priority date is commonly known as the effective date. Be that as it may, the priority date may be set much earlier than the actual filing date of your application, if such application claims priority to your earlier parent application. For obvious reasons, both the filing date and the priority date represent the key components in a battle against any opposing prior art.

How can I track opposing patents?

If you have been able to obtain a patent, that means you have invested a significant amount of time and money into your idea. A little additional investment with research and advisory firms like Narac or PatentLenz, specializing in tracking intellectual property developments, may be well worth it.  However, if the cost of the search becomes prohibitive, you may conduct your own search utilizing USPTO's and  EPO’s Espacenet websites.

How do I block an opposing application?

The first two steps are always the same. First, obtain details about the infringing device or process, and compare it to the broadest claim of your invention.  Second, write a letter explaining your position and simply ask the infringing party to stop. As part of your communication, you may offer some alternative solutions, such as licensing of your invention. Of course, the prior art doesn't have to belong to you, but in order to be submitted to the Patent Office as the 301 Statement, this prior art must be in a form of a printed publication or a patent. Other means of blocking an opposing application may include, among others, filing a protest, requesting interference or initiating public use proceedings.

How can I block an opposing patent?

As with the opposing applications, you should obtain details about the infringing device or process, and compare it to the broadest claim of your invention; remember that to interfere the elements of the opposing device do not have to be the same, but they have to be equivalent. If you uncover existence of infringement, you may initiate a legal action in federal court, or request a re-examination proceeding. In either situation, you will be dealing with a difficult process which will require a patent attorney's assistance.

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