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[Little Girl]

In my patent search I ran across 2 patents for  basically the same invention but made in slightly different manners. One is expired  and the other is an in force patent. Both have 2 claims and each independent claim is broadly written. They both have the same  major elements that is needed to make the "invention" what it is.   The expired patent's dependent claim speaks only of that major element and as it "having different styling configurations to facilitate" making the invention what it is.    The in force patent's dependent claim speaks only of  that major element but narrows it by stating that "it was chosen from the group (of styling configurations)" - and the patentee goes on to name every styling configuration known (truly), past and present; however some were not known or popular when the now expired patent was in force but several of the simplest styling configurations were known and spoken of in the expired patent's specs and also drawn for the application.  If I was interested in manufacturing the expired prior art patent, and use some of the styling configurations of the in force patent,  which were known and unknown at the time the now expired patent was in force, would I be infringing on the current in force patent?  The expired patent's dependent claim seems relatively broad "having different styling configurations to facilitate"; does that claim encompass known and unknown configurations? The patentee did not limit himself in his specs.  The in force patent gave no reference to prior art, only to their provisional application.

[George White]

Very hard question without seeing the claim wording. Possibilities include trying to get a re-examination of the in-force patent if the earlier patent anticipates or makes it non-obvious.

--George

[George White]

correction "makes it non-obvious".

--George