If my patent expires, can someone else re-file the exact same and claim it? 10 Answers as of January 23, 2013

If yes, what happens to my current product that was governed by the patent that expired? Can I reclaim the patent?

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Mark S. Hubert PC
Mark S. Hubert PC | Mark Hubert
When it expires you lose the right to sue for infringement. However if your product has a distinctive look (that is not purely functional) or its packaging has a distinctive look that signifies the source to the buying public, then you can sue copycats under the Lanham Act for trade dress.
Answer Applies to: Oregon
Replied: 1/23/2013
DANIEL NESBITT | Hasse & Nesbitt
Once a US Patent publishes and issues, the content cannot be patented by others. If a US patent expires or lapses unintentionally, and there was still live available, one may be able to revive it. But once expired, everyone is free to use the invention.
Answer Applies to: Ohio
Replied: 1/23/2013
Shimokaji & Associates
Shimokaji & Associates | Michael Shimokaji
Someone else may file a patent application on the same product and receive a patent, but that does not mean the patent is valid. Once your issued patent expires, it cannot be validly re-filed.
Answer Applies to: California
Replied: 1/23/2013
Sebby Law Office
Sebby Law Office | Jayne Sebby
Once a patent expires, the invention is available to anyone to use, improve upon, and/or sell. There is no way to "reclaim" a patent once it is beyond the term of protection.
Answer Applies to: Nebraska
Replied: 1/18/2013
Eminent IP, P.C.
Eminent IP, P.C. | Paul C. Oestreich
The short answer is "no". More particularly, once a patent expires by exceeding patent term, or by failure to maintain its enforceability by paying any one of the three maintenance fees required during patent term, the subject matter disclosed in the patent is dedicated to the public and others are free from the threat of infringement litigation with regard to that particular patent. Because patents are public documents, and therefore "prior art" to other inventors that may subsequently file patent applications, no one can "re-file" a patent on exactly the same subject matter as disclosed in any existing patent, expired or otherwise, not even the original inventor. This is because any valid patent must be novel and nonobvious over the prior art. The prior expired patent prevents others from subsequently obtaining a patent for exactly the same invention which is already public knowledge, or "disclosed in the prior art". Thus, any attempt to refile a patent on the same subject matter would be rejected for lack of novelty. Regarding the current product that was formerly covered by the now expired patent, others may now copy, make, use and sell identical products assuming no other patent has claims that read on the "product". Again assuming no one else has a patent that covers your product, you are free to continue making, using and selling your product, but you may have new competitors that you cannot stop from copying. As always, you should consult a registered patent attorney to discuss the particular facts relating to your situation for a more complete analysis of your legal rights and obligations.
Answer Applies to: Utah
Replied: 1/18/2013
    The Olmsted Law Group PLLC
    The Olmsted Law Group PLLC | Andrew Olmsted
    No. Your original patent is prior art and a new, identical patent application would be denied.
    Answer Applies to: Washington
    Replied: 1/18/2013
    Law Office of Mathew R. P. Perrone, Jr. | Mathew Roy Patrick Perrone, Jr.
    No. Anyone may copy an expired patent with impunity.
    Answer Applies to: Illinois
    Replied: 1/18/2013
    Tran & Associates | Bao Tran
    No, it is prior art and no one can refile exactly as is. However, you can make incremental improvement to the technology and that may be patentable. Check out Provisional Builder as an inexpensive software to draft provisional applications. Then use a patent attorney to convert the provisional into utility application in a year. That will save you money.
    Answer Applies to: California
    Replied: 1/18/2013
    Banner & Witcoff, Ltd. | Ernie Linek
    NO - your patent is "prior art" to the new application - so the new application cannot claim to be "new." Even a minor change to your expired patent may not be granted a new patent - as the change might be "obvious.
    Answer Applies to: Massachusetts
    Replied: 1/18/2013
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