Patent granted with a terminal disclaimer that violates my provisional patent, what to do

Question

Company A was granted a patent in April of 2020.

I filed a provisional patent application in January of 2021 that did not violate Company A's patent.

Company A applied for and was granted a second patent in September of 2021 with a terminal disclaimer. This patent was essentially the same patent like the one that they were granted in April of 2020, however, the changes that were made would violate my patent if/when granted (with the provisional grant date being enforceable as of January of 2021).

My question is, has this ever happened before, and is their new grant with the terminal disclaimer enforceable against my product even though my patent would not have violated their initial grant.

The grant that was filed in April of 2020 listed their invention as using an actuator with a servo motor, my invention does not require or use a servo motor. The patent that was granted with the terminal disclaimer lists any device that uses a LED light or other light to indicate the target, whereas their initial patent listed devices using a servo motor.

I know it is a minor detail, however, my invention would not have violated the patent that they were granted in April of 2020, but does violate their patent that was granted with a terminal disclaimer in September of 2021.

Answer 1

First - patents do not “violate” or infringe patents, products infringe (or don’t infringe) patents.

You also seem to think that the patentability of your claims will be judged by comparison to their claims. That is not the case. Your claims will be judged in light of the whole disclosure of their application as well as every other published document and patent that occurred before your filing date.

If, in a continuation application, claims were granted to A that didn’t require servos, for example, then a version without servos was disclosed in the original application although not claimed in the first patent. Therefore your claim to a version without servos will be seen as not novel in light of the specification of A.

If A’s second patent was from a newly filed application, not a continuation application, then your provisional’s disclosure might be valid prior art to the second patent. Since provisionals are not published it would be invisible to the examiner.