QUESTION
What happens if you apply for a similar patent around the same time? How?
Asked on Jun 05th, 2015 on Patents - Massachusetts
More details to this question:
I recently filed a patent application, but I just came across another pending patent that is very similar to mine. We filed for the patents around the same time, but his application is a few weeks older than mine. Will his application trump mine? If my application is rejected for being too similar to his, is there anything I can do to still patent or market my product?
2 ANSWERS
U.S. patent law changed a few years ago from "first to invent" to "first to file." If your invention is similar enough to the other invention, the USPTO will grant that patent and deny yours. However, if the other patent is denied, you may still have a chance with your submission. Check with an experienced patent attorney about how to distinguish yours from the other application.
Answered on Jun 08th, 2015 at 3:07 AM
Appellate Litigation Attorney serving Boston, MA
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Under the new patent law - the first inventor to file wins in such a situation. For your application to succeed - it must be new, useful and not-obvious in view of the first-filed case - as well as any other prior art found by the patent examiner. Claim amendments might make your invention different enough to be patentable over the first filed case. However - if the first filed case has broad claims that issue - and those claims cover your invention - you would need a license to make, use or sell your invention. If you applications are under the old patent law - that is, they were filed before March 16, 2012 - then the first to invent wins in such a situation - if certain requirements for interferences are met. GOOD LUCK!
Answered on Jun 05th, 2015 at 7:06 PM