Print

Please login or register.
1 Hour 1 Day 1 Week 1 Month Forever
Login with username, password and session length

[ckaicer]

Hi All,

Great site and so glad it exists.

My question is this:  I have invented a product 4 years ago, have been sitting on it and moving forward quite slowly; getting prototypes made etc. and developing it.  

I did a patent search just the other day, as i do regularly and i found a patent that is what my product is.  So am I legally OK to move forward with my product because I can prove it was invented before the date of the patent I found, or am I doomed to get my product onto the shelves?

I wont be getting  a patent for it, but i can get a design registration for it.

[CriterionD]

Well, thats why its always good to do some patent searching before the prototypes and other investments (time and money).

In terms of the patent you reference, to clarify, the issue date won't matter - only the priority date (date of the first qualified application, assumed to be the date of invention), and more pertinently the actual date of invention.  And outside of the US they operate on a "first to file" system rather than "first to invent," which could complicate matters further.

And even then, things might very well have to go to court before the other patent was invalidated and/or you were exonerated of infringement.  And you would have to prove your date of invention according to relevant legal definitions.

That all said, three things -

First, while it seems clear that you cannot patent your invention as it is (except maybe or maybe not a design patent), infringement is a separate, more technical issue, and here it relates mainly to what is said within the claims of the patent you reference.

Second, there may be other similar and/or relevant (at least semi relevant) patents (and patent apps) that exist but were filed before or after the patent you reference.  Your search might not be complete, and that might or might not matter.

Third, you can always patent novel and non-obvious improvements to a patented invention, and you can always try and track down the inventor/assignee of a patent and seek a joint venture or alternate partnership.

[ckaicer]

Hi,

Thanks for your reply.

I am in Australia, so I guess it would be the "first to file" date I will be concerned about.  I can prove I invented the product between two dates, but not on an exact date, but theses two dates are way before the first to file date on the patent I found.

I have also found prior artwork in the public domain, the internet, and I can easily order the product over the net.

So do I now send the lawyers of the patent the links and prior art info and my product idea proofs as well?

What do I do now?

Thanks,
ckaicer

[CriterionD]

ckaicer,

I believe the date of your invention will not matter here unless you had published a satisfying disclosure of the invention to serve as prior art or had otherwise disclosed your invention to the public.

In any event, I am not an attorney and am not extremely familiar with Australian patent law and procedures.  Perhaps this article may help you -

http://www.iptoday.com/articles/2007-10-eagar.asp