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
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
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
Jason DeFrancesco | Jason DeFrancesco
No. When a patent expires, that is it... It is dead and is in the public domain, free for all to use. If perhaps your patent "expired" for failing to pay maintenance fees, you may be able to revive it if the delay to pay was unavoidable or unintentional. See MPEP 2590. If perhaps you really mean patent "application" and not "issued patent" then someone could file the exact same thing and potentially get a patent for it if they filed before your application published. (If they are not the true owners or inventors, then their filing would be fraudulent and any issued patent would be void.) Otherwise, if they have a pending application that predated your filing, and is more or less similar to yours, they could file another application same to yours and claim priority to the original filing and essentially claim what you did because they are potentially the owners/inventors.
Answer Applies to: New Jersey
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
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