QUESTION
If i make and sell a product and someone gets a patent years later that covers the product, can I still make and sell it?
Asked on Sep 22nd, 2013 on Intellectual Property - California
More details to this question:
In 2007, I wrote a disclosure about a device and emailed it to an attorney (my niece) to look at it (within the family). I did not then file it with the USPTO. I did file a provisional patent this month Sep, 2013. In 2012, someone filed a provisional patent on it. If I form a company now that sells the product, will I have freedom to make & sell the product even after the other party gets a patent on it several years from now? In other words, is there freedom to use unprotected ideas if no patent exists and still do so, afterwards?
1 ANSWER
Intellectual Property Attorney serving Manchester, NH
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The US now has a 'first-to-file' patent system. Whoever files a patent application first on that idea, maintains the patent application (or continuity), and obtains a patent has the right to keep others from making the technology. There are exceptions for businesses that were making the patented product before the first patent application was filed, but you are not suggesting that fact exists in your case.
Until the patent issues, the patent owner does not have any right/ability to file a patent infringement complaint against someone else making their invention. However, once the patent issues, they can stop you from making their product and, if the claims are the same as the patent application that published, they could sue an infringer for making the patented product before the patent was issued.
Answered on Sep 23rd, 2013 at 8:09 AM