Let me give you an analogy. Painter Joe paints a picture of a cactus framed by red mountains. He is the copyright owner because he is the artist. He can register the copyright or not. Painter Bill makes a derivative work of Joe's painting that is a sephia image. Bill is entitled to the copyright in the sephia image because it qualifies as a work of art. Bill may file for a copyright as well. However since Bills artwork is derivative of Joes, Bill's work infringes. Bill cannot profit from his work of art.
If this were patents perhaps it would be clear. Inventor Joe designs a new transmission with parts a b a c interconnected. He gets a patent. Inventor Bill invents a better transmission with parts a b c and d. Inventor Bill gets a patent too because it is a new and novel invention. Hpwever Bill cant make use or sell his new transmission becsue it infringes Joes patent rights. Why Because Joe has a patent on a transmission with parts abc. To
infringe, one need only have all of the same claim elements as anothers patent. Does Bill have a transmission with parts abc? Yes. It does not matter if there is also a d.
Answered on Dec 09th, 2010 at 3:28 PM