Q: a patent question
My business partner is a manufacturer in China and he has a Chinese patent 4 yrs ago. Now he wants to apply for a U.S. patent with the same product/part. The problem is that his retailers have already sold the product into the U.S. market. My question is: is it possible to get a U.S. patent if he applies for it now? He is 100% sure that the products in the U.S. market are all from his factory, and the retailers just change the logo into their own brand.
A: Unfortunately, most likely not. Your partner had two options to get a US patent. Either apply directly for a US patent within a year of filing for the Chinese patent, or alternatively file for an international (PCT) patent application, and then apply for a US patent application within 30 months of filing for the PCT application. If, as you say, the Chinese patent issued four years ago, then both time windows have likely passed.
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