Q: I am wanting to sell a product that has a patent in the United states but the thing is this same product has been made
in China for several years and has been sold throughout the world for several years before this patent was issued in the United States. Would I be able to sell this product even though there is a patent in the United States? If I could prove that the product already existed and was being sold before the patent was granted here.
A: The question is not whether the product has been sold before the patent was ISSUED, but whether the product has been sold before the patent was APPLIED FOR. Remember, it takes several years from the application date to the issue date.
But, if you could prove that the product claimed has been sold before the application date of the earliest application date (or that the inventor sold it more than a year before the earliest application date), then the patent may be found as invalid. That is the good news. The bad news is that the litigation will cost many hundreds of thousands of dollars. And because an issued patent is presumed to be valid, it is up to you to prove that the patent is invalid.
In any case, if you decide that you can risk getting sued because you think that the patent is invalid because the product was indeed made, sold, or offered for sale before the application date, then before you start to make and sell the product, you will need to get an invalidity opinion from a patent attorney. The opinion will assure you that the patent is indeed likely invalid, and it will provide you some level of protection against the accusation that you knowingly infringed.
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