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[ustilago]

Please excuse my newbness, I am relatively new to the world of patent issues.

My understanding of patent law is limited to what I have gleaned from internet searches particularly at the Canadian Intellectual Property Office and the World Intellectual Property Office.

I am a small business owner producing custom parts for air guns. I have had a number of request to produce a "breech band" compatible with a specific Manufacturer's breech. I produced a prototype and posted pictures on an internet forum offering the device for sale.
A competitor in New Zealand makes a Breech and Band combination. He took offense to my creation and has made quite a fuss about the whole deal. Neither device (his nor mine) is patented.
He claims to have started the process of applying for a patent for his breech and band.
I maintain that his "invention" is in the public domain as he has posted pictures and descriptions on the internet for more than one year now.

And then I discovered this Patent granted in 1904 which describes in claims 4 though 7 a "breech band" which attaches the breech to the airtube.

My questions are:
1) Can he patent (Internationally) his breech and band in light of the fact that he has been selling them for more than 1 year?
2) Does he have any Intellectual Property Rights given the fact that he has "invented" something that was patented over 100 years ago?
3) Can I just ignore him now and  get on with making chips and happy customers, content in the knowledge that this obvious extension of pre-existing technology is already in the public domain?

Thank you

[Wiscagent]

Re question 1:  In all countries, if a product was sold more than one year before the date of a patent application claiming the product, then the applicant can not receive a valid patent.  (In most countries, a patent must be applied for before selling the product, there is no 1-year grace period.)  Patent applications typically publish 18 months after the application is filed, and during that 18-month period the public has no way of knowing if an application has been filed.

Re question 2:  Patent rights have expired for any product that was sold 100 years ago.  Other intellectual property rights - I'm thinking of trademarks - may not have expired.  It's probably not a good idea to call your gun a "Winchester" or a "Colt"; the owners of those trademarks would not be pleased.

Re question 3, "Can I just ignore him".  You already know the answer ... of course you CAN just ignore him.  The question should be "How much of a risk will I be taking if I just ignore him?"  I'm not going to offer any legal advice, but I suggest that you consider what would be involved for this New Zealander to sue you in Canada.  How much would it cost the NZ guy to file a law suit against you?  What would it cost to defend yourself?  Does this NZ guy have a history of suing people in other countries?  If the New Zealander somehow won a suit against you, what would the consequences be?  If you are really concerned it might be worth a few dollars to consult with an attorney on these matters.

[ustilago]

Thank you for your expert opinion.

It pretty much confirms the advice that I have previously been given by my own lawyer. Granted, he is not an expert in Patent law or international IPR. Essentially, it's not patented and he's offering them for sale, the idea is now in the public domain. . . It's an obvious extension of existing technology. . . the idea is in the public domain. . . etc. ad nauseum

My worthy opponent has given me sufficient grounds for a pretty solid libel suit. If it turns nasty.

I believe my behind is sufficiently covered.

Thank you again.

[gpw]

You may have missed something in the previous reply. Internationally, applications are published 18 months from earliest filing date. So you not finding a patent or a published application (assuming the discloser you mention as "over a year" is not over 18 months). In theory, your competitor could have filed for a patent 17 months ago that will publish next month. Via PCT, he could get solid patents on a world-wide basis. Of course. if both of your products are non-novel and/or obvious over the 1904 thing then there are no worries.