Can I incorporate an old patent feature into my patent without infringement? 3 Answers as of March 23, 2011

If a current patent incorporates a feature from an out of date patent, am I allowed to incorporate that feature in a totally different invention without infringing on the current patent's rights?

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DANIEL NESBITT
DANIEL NESBITT | Hasse & Nesbitt
Patent infringement can be a complex analysis of the actual scope of coverage of a patent, and the legal limits to which a patent claims might be asserted without running into invalidity problems. Patents are infringed when the product or process accused of infringing includes each feature of at least one claim of the patent. I urge you to contact a patent attorney to assist in this matter. Please contact me is you would need such advice.
Answer Applies to: Ohio
Replied: 3/23/2011
Michael M. Ahmadshahi
Michael M. Ahmadshahi | Michael M. Ahmadshahi, Ph.D., Esq.
Absolutely. An expired patent is available to the public for use free of any restrictions.
Answer Applies to: California
Replied: 3/8/2011
Malhotra Law Firm, PLLC
Malhotra Law Firm, PLLC | Deepak Malhotra
There are two issues here. One is whether it is possible to obtain a new patent that builds on features of an old patent. Another is whether obtaining a new patent necessarily means that you have a right to manufacture.

The answer to the first question is yes, it is possible to obtain a new patent that builds on an old patented idea. In fact, many inventions build on old ideas.

The answer to the second question is no, just because it may be possible to obtain a new patent on an improvement of an old idea does not mean that you are not infringing someone else's patent. To be sure that you do not infringe on someone else's patent, you should hire an attorney to prepare an opinion on whether or not your new product infringes the old patent. Patent protection is defined by the claims section of the claims and the old patent may not cover exactly what you think it covers. It may also be possible to design around the old patent.
Answer Applies to: Washington
Replied: 3/8/2011
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