I am interested in applying for a patent and found a similar one that has lapsed. May I apply for mine as a new one even though it is similar?

  • Is there something new and novel? – Eric S Nov 10 '16 at 15:08

The requirements for patentability include the requirement of novelty, meaning that there must not be a prior invention of the same subject matter prior to your invention. 35 USC 102. Even if the invention disclosed in the lapsed patent is not identical to your invention, if it is sufficiently similar that your invention would be deemed obvious to someone who is skilled in the technology, then it would not be patentable. (Inventive step) 35 USC 103.

You certainly may apply for a patent, but it would be unlikely that a patent would be issued unless you can convince the relevant patent office that your invention is novel and nonobvious in view of the lapsed patent.

  • Are the rights to a lapsed patent still protected? I know of a company in the US wanting to produce a product that is similar a lapsed patent in Australia. – cj182 May 9 '17 at 14:38

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