What should I do if I found a prior art on a tool being sold now?

You're correct that the Popular Science article you've cited represents prior art with respect to the ClampTite tool. Even so, it is assumed that the United States Patent and Trademark Office (USPTO) considered not only this prior art reference but a number of others disclosing tools similar to the ClampTite tool you've mentioned. In fact, the patent application from which the ClampTite patent (US5148577) was granted, which indicates E. Ray Silvey as the original inventor, references several earlier patents covering similar tools. For example, a patent granted in 1911 to Simon Schlangen (US1012282) discloses a hose-tie wrench. Others include US899657 in 1908, US1072301 in 1913, US1453940 in 1923, and US2421878 in 1947. In all, 20 patents were cited in the E. Ray Silvey patent application, each covering tools providing a similar function as the ClampTite tool. The original Silvey patent, though, was granted in 1992, which means that it has expired. However, Silvey's daughter was granted a much more recent patent in 2006. As such, it maintains several additional years of exclusivity, which prohibits others from making or selling products that infringe upon those rights granted by this patent. Even though a patent exists covering aspects of the ClampTite tool, this doesn't mean that an inventor cannot design around this patent. For example, an inventor may create a tool that functions more efficiently or design a tool functioning in a similar way but has a different appearance. An experienced patent attorney can help you determine if your idea for a wire/clamp tool is patentable in light of the prior art that exists. Pursuing the making and selling of your idea without patent counsel may expose you to potential litigation.

You will NOT be safe from litigation - even with prior art "in hand". The patent is presumed to be valid - until someone shows by clear and convincing evidence that it is invalid. You can submit the prior art to the Commissioner of Patents and ask that a reexamination be conducted - but they will likely not do so. You can also send a copy of the prior art to the Patent Owner and ask them to do the same - have the patent reexamined - but again, it is unlikely that they will do so. If you have the funds - you can file a reexamination request of the patent (expensive); or seek to have the patent invalidated using the new Inter Partes Review procedure (very expensive).

1. There will be no "guarantee" against litigation, unless the patent is found to be invalid by the USPTO or a court of law. 2. You didn't say whether the tool you propose to sell is really covered by the patent(s)- in other words, please obtain a copy of the patent and compare all of the elements of every one of its *claims* to your tool. 3. Does your tool have every element of at least one claim in the patent. If yes, you are infringing. If no, you will not infringe. 4. If yes to #3, ask whether the prior art reference you have found actually has every element in each claim of concern. If the prior art reference does not have every element of the reference, invalidity might still be found under obviousness. However proving obviousness is likely to be more difficult than anticipation (anticipation=having every element). If the prior art reference has every element of a claim, that claim should be found invalid by the USPTO or a court of law. 5. If there is anticipation (#4), you can either have the patent invalidated or request the patent holder to grant you a license to manufacture and/or sell your product without payment of any royalty. Then you will not be liable for selling your product. 6. Unless you experienced with patent prosecution and licensing, you would be well advised to retain an attorney to help you with these things. 7. If you conclude that your tool is not covered by the patent claims and/or that the prior art reference anticipates the patent claims, you nonetheless would be well advised to retain a professional to confirm your analysis before selling your own tool.