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Assume there is a Patent Application filed at Jan 2012 with USPTO and I think its claims are too much broad and vague. It has not been granted yet.

If I have an idea that is totally similar to the claims of that Patent Application but with at least one further innovative step which makes the claimed method much more strict and feasible then is it possible for me to file a new Patent Application with a Patent Organization in another country which that country is committed to Paris Convention for the Protection of Industrial Property?

Should I wait to see if that Patent Application is granted (or not) and then proceed?

What should I do? what can I do?

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2 Answers 2

up vote 1 down vote accepted

Your invention may be a patentable improvement on the invention of the other person's patent. They may or may not get a patent and you may or may not get a patent. If you both get patents you might not be able to make and sell your invention because, even though patented, it might infringe on the other patent. If you think it has commercial potential, just file now.

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Really Thanks, You are right; Improvement on an invention. I think my method can be patentable because it has at least one further innovative step. –  anonim Apr 24 at 22:34

If you are certain the claims are too broad and that upon examination by an examiner you will be forced to limit the claims,I would refile the current provisional with the limited claims. The advantage of this strategy is to avoid estoppel by limiting the claims in response to an examiner's rejection which can be difficult in case of patent litigation if the patent is granted. I would do this before filing a PCT as the broad claims n the existing application the PCT is examined. The PCT examiner would probably be the same examiner for the provisional who would reject the claims so your problem would not be avoided.

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The question relates to a third parties application, not the OP's application and there is no mention of a provisional application in the question. And of course, provisional applications, if that had been the subject of the question, are not examined. –  George White Apr 23 at 3:01

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