Can I incorporate an old patent feature into my patent without infringement? How? 5 Answers as of August 18, 2015

If a current patent incorporates a feature from an out of date patent, am I allowed to incorporate that feature in a totally different invention without infringing on the current patent's rights?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 | Hasse & Nesbitt
Your question suggests you have an understanding of the patent law that would make the answer obvious, thus suggesting you might not be asking the question correctly. I suggest that you engage a patent attorney and put the issue directly to her/him.
Answer Applies to: Ohio
Replied: 8/18/2015
Sebby Law Office
Sebby Law Office | Jayne Sebby
If the feature is no longer protected by patent in the market in which you want to sell your product (patent protection lengths can vary by country), you can use that concept in your invention without anyone's permission.
Answer Applies to: Nebraska
Replied: 8/18/2015
Law Office of Kirk Buhler
Law Office of Kirk Buhler | Kirk A Buhler
Design patents have a term on 14 without any maintenance fees. Utility patents have a current term of 20 years from the earliest effective filing date plus any patent term adjustment. Maintenance fees are due on Utility patents at years 4, 8 and 12 to keep the patents enforceable. Once a patent expires the invention becomes public domain and the holder of the patent can't sue for patent infringement. I don't know what "out of date patent" means, but if the patent has expired you can make an use the technology without infringing.
Answer Applies to: California
Replied: 8/18/2015
Banner & Witcoff, Ltd. | Ernie Linek
Maybe - but to be sure - go visit a patent attorney for a review of your invention vs. the current patent. For instance - the expired patent teaches and claims "Element A" - which is now in the prior art. Anybody can make, use, and sell "Element A" - and it can be used in a new invention - but only in combination with at least - new "Element B." If your invention is a combination of "Element A" and new "Element C" - which is different from "Element B" - you would likely not infringe the "Element A & B" patent. GOOD LUCK!
Answer Applies to: Massachusetts
Replied: 8/18/2015
Michael M. Ahmadshahi
Michael M. Ahmadshahi | Michael M. Ahmadshahi, Ph.D., Esq.
You can always incorporate the old patented feature in your patent. However, if you decide to make, use, sell. etc., your patent and the old patent is still in force, then you must either purchase or license the old patent. If the old patent is expired, then you can use it as you please.
Answer Applies to: California
Replied: 8/18/2015
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