Ogden, UT asked in Patents (Intellectual Property) for Utah

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.

1 Lawyer Answer
Peter D. Mlynek
Peter D. Mlynek
  • Patents Lawyer
  • Moorestown, NJ

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.

Good luck!

Justia Ask a Lawyer is a forum for consumers to get answers to basic legal questions. Any information sent through Justia Ask a Lawyer is not secure and is done so on a non-confidential basis only.

The use of this website to ask questions or receive answers does not create an attorney–client relationship between you and Justia, or between you and any attorney who receives your information or responds to your questions, nor is it intended to create such a relationship. Additionally, no responses on this forum constitute legal advice, which must be tailored to the specific circumstances of each case. You should not act upon information provided in Justia Ask a Lawyer without seeking professional counsel from an attorney admitted or authorized to practice in your jurisdiction. Justia assumes no responsibility to any person who relies on information contained on or received through this site and disclaims all liability in respect to such information.

Justia cannot guarantee that the information on this website (including any legal information provided by an attorney through this service) is accurate, complete, or up-to-date. While we intend to make every attempt to keep the information on this site current, the owners of and contributors to this site make no claims, promises or guarantees about the accuracy, completeness or adequacy of the information contained in or linked to from this site.