I’VE NOTICED THAT A PATENT FOR A PRODUCT HAS LAPSED. AM I FREE TO MAKE THE PRODUCT?

When a patent lapses, its owner loses the exclusive right to the invention, i.e. the right to stop others from making, using, importing into, or otherwise exploiting product according to the invention in the country where the patent was granted. If someone else starts to exploit the invention then the owner of the lapsed patent is unable to enforce the now lapsed patent right. However, take care because:

  1. It’s possible to have lapsed patents reinstated in some circumstances
  2. Someone else may have an earlier, unlapsed, patent that is in force and which has claims that are sufficiently broad to cover the invention; and
  3. There may be other intellectual property rights associated with the invention that haven’t lapsed. For example, design registrations that protect the visual appearance of the product or copyright that protects software that the product uses.


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