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For the patenting of one idea, found an existing granted patent which is slightly similar, though seems to not cover the entire idea.

One aspect though is not so clear whether it will be an issue or not. It has to do with a vague description in an independent claim, followed by two dependent claims with specific description. The structure is as follows:

  1. (Independent claim): X uses a plurality of Y
  2. (Dependent claim): The method of claim 1, using two of Y
  3. (Dependent claim): The method of claim 1, using three of Y

Further claims do not have higher numbers for "plurality". I am interested in larger "pluralities" and from the background description it does not seems evident that the authors had this specific approach in mind.

What are the concequences of this for my patentability? Could the effect of the limited specification of plurality (to 2-3 of Y) in the dependent claims be interpreted as the authors having it in mind, or would it not be patentable becuase the independent claim protects for this?

  • I fear I'm having a little trouble understanding whether your question relates to patentability or freedom-to-operate. That is, are you asking about whether your invention of say "X using 8 Ys" is novel over the prior art you found? Which is a fair question about the allowability of selection inventions. However, in that case, it doesn't matter what the prior art claims: it only matters what is disclosed. So the reference to the claims of the prior art makes this a little confusing for me. – Maca Oct 1 '17 at 21:39

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