Asked in Patents (Intellectual Property) for Florida

Q: Can a patent be issued for something already being sold?

My original company sold a golf grip that was issued a patent 10 years after I first sold these grips.

1 Lawyer Answer
Kevin E. Flynn
PREMIUM
Kevin E. Flynn
Answered
  • Patents Lawyer
  • Chapel Hill, NC

A: A patent should not be issued if the patented claims read on a product that was on sale before the patent application was filed. It would be unusual but not impossible for a patent to issue from a patent application family that stretches back 10 years.

The patent may be for a very narrow nuance on the product and thus, what you were doing years ago and what you are doing now does not fit within the scope of the claims. This happens with design patents on the quirky way that a product looks not what it does. Chances are that a new design patent is not going to be a problem against your old product. But you need to check.

It is possible that the Patent Examiner did not know of your product as the Patent Examiners are not omniscient. They are pretty good at finding patents in their filing system but not so good at finding products that were not patented.

As you can guess, the final answer is going to come from a patent attorney that looks carefully at the issued patent and the product you were selling 10 years ago. There are ways to trim back or kill a patent that should not have issued.

I hope that this helps.

Kevin E Flynn

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