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Any Patent Experts Here
Old 06-27-2009, 12:18 PM   #1
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Any Patent Experts Here

Hypothetical question:

Lets say my company develops a product, and takes it to market (without patent).

Competitor X copies the idea and begins selling like product.

While all this is going on, my company decides to patent the idea.

What would be my company's recourse with competitor X? And are there any issues with other competitors going forward?

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Old 06-27-2009, 12:30 PM   #2
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This is a "non-trivial" series of questions which depend on the fact situation. The company should immediately consult their patent counsel.

In the meantime, you can look at one aspect of the U.S. law, which only a lawyer could love:

35 U.S.C. 102 Conditions for patentability; novelty and loss of right to patent. - Patent Laws

"A person shall be entitled to a patent unless..."

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Old 06-27-2009, 03:13 PM   #3
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I believe that if you openly market a product for sale prior to filing for a patent that it is considered unprotected and already in the public domain. Some caveats to this exist; (i.e. one-off prototypes in testing, etc.) Your ability to obtain a patent based on a product already in the public domain is much more difficult; who is to say that your competitor didn't develop their product in a parallel time frame or even get there first? Even if you did manage to get a patent issued, they could claim prior art based on their product being in the marketplace prior to your filing date. You may have what you feel is a slam-dunk case supporting your product patent claims, but proving and defending them is EXPENSIVE. The only way to ascertain how the patent laws apply to your particular situation is to consult a qualified patent attorney. Quickly.

Good luck; patents, attorneys, and competitors make for a fertile minefield.
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Old 06-28-2009, 09:21 PM   #4
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Unless a provisional patent application was filed with the US Patent Office before the product was widely talked about, shown, or sold pubically the ability to protect becomes very challenging. If an idea for a product or business method is captured, documented, and filed in a low cost Provisional Patent so that it becomes "patent pending" it will be hard to document and protect after the fact.
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Old 06-29-2009, 03:20 AM   #5
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This is not legal advice, but you should look up what a 102(b) bar is, it will probably help answer your question. If you still want to proceed, it will require having a patent attorney look at it (since a patent agent can't give a patentability opinion), and quickly, because the hypothetical company's time-frame may be quite limited, if it has not expired already.
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Old 06-29-2009, 10:09 AM   #6
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What's the problem? China has been doing this for decades!

FIRE'd since 2005
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