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What if A + B + C is patented but A + B, for some reason, is not?
Then someone comes along and patent A + B.
In such a case, the prior art A + B + C, would actually be infringement on the new art.
How is this scenario prevent? If this can indeed occur, what happens?
Nothing new can cause something existing and publicly known or published or patented before the filing to infringe.
It can happen that A + B, interconnected in a certain way, achieves something that was previously thought to need C. The new invention is doing it without C. Or maybe it has a result or function not related at all to the result of the known A+B+C device.
Assuming the examiner finds the reference to A+B+C, A+B could only be allowed if the claim either limited itself to the case of a new and non-obvious way to interrelate A+B.
That is called a negative limitation and would need to be well supported in the specification-as-filed. If the inventor didn't know about A+B+C they probably don't explain how they got around needing C and would find it hard to add "without C" at the last minute.
If A+B was patented and I invent an improvement A+B+C, I will need permission from the A+B patentee to make. sell, import, etc. A+B+C whether or not I get a patent on that combination.
Also note that products infringe claims, patents do not infringe other claims.
It can happen that A + B, interconnected in a certain way, achieves something that was previously thought to need C. The new invention is doing it without C., would this be considered new and non-obvious hence allow A+B to be granted?
Sep 9, 2022 at 1:15