Suppose that an invention already exists and is patented and published.

Someone files a patent application for the same invention. It is approved because the examiner was not able to find the previous patent.

What happens now?

What if the person who holds the original patent files a lawsuit against the new filer of the same invention?

1 Answer 1


First, patents don’t infringe patents, products infringe patents.

Second having a patent on a product you make and sell is irrelevant to any analysis of that product infringing someone else’s patent. A patent does not put a halo around your product, it is a tool to try to stop others. So, if the person with the second makes a product, they are exactly in same position they would be without the patent - liable to be sued for infringement by the person with the first patent.

And the second patent will not be vary valuable since it won’t stand up if the patented sues someone for infringement.

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