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I published four months before them

They filed for patent eight months after I published

Can I claim their patent?

Also I submitted an very similar patent two months before I published. I am just one man and don't have resources to really submit a thorough patent. The idea I published was more scientific so my patent publication into more of a applicable hardware device, because I don't understand what is "patentable".

The other patent was filed by a University 8 months after my publication.

Is there any argument explaining that obviously if I had resources such as a University. I would have filed my patent before them.

Do I have a case?

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  • So they first published and then filed a patent?
    – user18033
    Commented Nov 21, 2017 at 0:12
  • no I published first, I didn't file a patent.
    – pottedmeat7
    Commented Nov 21, 2017 at 0:53
  • but you say that you published for month before them and that they filed a patent 8 months after your publication. That would be four months after their publication?
    – user18033
    Commented Nov 21, 2017 at 0:55
  • If you want to make your publication visible to patent examiners, you might want to check out this question/answer: patents.stackexchange.com/questions/18719/…
    – Eric S
    Commented Nov 21, 2017 at 14:59

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The answer is no, you have no claim on anyone else's patent applications. What you have is prior art. Once you published your technology, you lost your ability to patent it in many countries. In the US, you do have a 12 month grace period, but it is dangerous to publish before filing for a patent as someone else could file before you. Your publication should prevent anyone else being able to patent your invention. That said, it is possible the patent examiners may not find your publication while examining their applications. You may want to make the patent examiners aware of your publication to make sure it is considered during the examination of the applications you believe copy it.

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  • If I'm not mistaken, you lose your right to claim your published invention in a US patent only if your patent application is file more than one year after your publication. If you're lucky, the examiners will automatically detect the conflict during examination and reject their application. You may also send a dated copy of your publication to the applicant, which they must then disclose to the USPTO, under the duty of disclosure.
    – Upnorth
    Commented Nov 27, 2017 at 21:55
  • @Upnorth Thanks for the comment. I overlooked that and edited the answer to take your comment in account
    – Eric S
    Commented Nov 27, 2017 at 23:07
  • There are very limited windows during which you can make your publication available to the patent examiner, so if this is important to you, you should consult a patent attorney to identify the windows, or at least try to figure out the windows yourself. If you miss the windows and the other side obtains a patent, and you want to challenge it for some reason, it's still possible to do, but it is much more expensive.
    – Dave M.
    Commented Dec 1, 2017 at 23:10

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