More details to this question:
I filled a design patent on April ( the new first to file system become a law on march) and then found out there is a small company that makes it, they didn't file any patent on it, do I have a chance getting a patent because its first to file system? if I get patent what actions I can take toward the company that already makes it? thank you
1 ANSWER
First-to-file only relates to who has priority between two patent applicants. It does not relate to patentability with respect to prior subject matter such as things that have been publically disclosed or on sale. Since you know about the product that has been on sale, you are oblicated to disclose it to the Patent Office and if it is the same as you design, you will not get a patent. If you do not disclose it and you get a patent the patent will not be valid or enforcible.
Answered on Jun 17th, 2013 at 8:59 AM