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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?

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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.

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  • In the case of 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
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    The interrelationship of A and B is an element of the claim as much as A and B are elements. So we are talking about A$B + C is known and you invent A@B. Yes A@B is novel in regards A$B + C. If it is also not obvious it could be allowed.
    – George White
    Sep 9, 2022 at 7:02

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