Let's assume certain invention is patented in country A, but not in B (in the latter it should be considered novel and non-obvious). Can a random person (not the original inventor) apply for and be granted a patent in country B on that same invention (thus prohibiting the inventor to produce/sell it in B)?
4
-
2I’m voting to close this question because it belongs on patents.stackexchange.com– BlueDogRanchFeb 3, 2021 at 20:48
-
7I'm voting to leave this question open because legal questions about patents are not off-topic here, even when they're on-topic on Patents.SE.– Ryan MFeb 3, 2021 at 23:47
-
3This question is on-topic here. If closed I would vote to reopen.– David SiegelFeb 4, 2021 at 0:14
-
2I currently hold the all-time high rep on Ask Patents and I agree that this is on-topi here at Law. People with questions about patents might get different and possibly more detailed answers there than they get here.– George WhiteFeb 4, 2021 at 0:46
Add a comment
|
3 Answers
No
Because it’s patented in country A, it is not novel anywhere in the world. That is, the patent in country A is “prior art” that would disqualify it from being patented anywhere else.
The original patent holder can patent it elsewhere because patent law has an exception for that.
-
1Even it was published but rejected as a patent in A the case would be the same. And, importantly, only the true inventor can file a patent. Feb 4, 2021 at 0:49
No
Only true inventors can apply for a patent. If it was not patented in country A or anywhere, a random person who is not the inventor still can't patent it anywhere.
In practice, of course someone could lie on the oath and be granted a patent.
answered Feb 4, 2021 at 0:44
-
1true inventors is not the right word for the requirement. The true inventor couldn't be a company but only a natural person... but most patents are owned by companies. And there have been cases where an unpatented item was filed for patent somewhere by a non-inventor someplace and their patent won.– TrishFeb 4, 2021 at 7:34
-
1Ownership and invetorship are two completely different things. All patent applications require an inventor to be listed even if the applicant is a company. In the U.S. an application requires a signature of an inventor declaring " believe that I am the original inventor or an original joint inventor of a claimed invention in the application." There is currently international discussion about whether an AI can be an inventor, but it is clear a company is not an inventor. Can you point us to the example of a non-inventor getting a patent that held up? Feb 4, 2021 at 19:06
-
1@Trish What George said. I am the inventor (and listed as such) on several patents, even though the company for which I invented said things owns the patents.– reirabFeb 4, 2021 at 19:38
-
the better word is claimed. Because we got cases like US6368227B1 which patented a swing– TrishFeb 4, 2021 at 19:44
-
Patents that seem silly do not seem relevant to the topic. Unless you are saying the inventor of the '227 patent stole the idea from someone else. If I remember right, it is for an odd method of swinging, not for a swing. Feb 4, 2021 at 21:35
Depends on the laws in Country B.
Different countries have different laws, and in some countries, it might be legal to patent other people's inventions from other countries. While First World/developed countries would likely try to prevent this, some Third World/developing countries have a much more permissive attitude towards patent law, and may well turn a blind eye to natives of that country stealing patents from foreigners.
-
Can you provide an example? If such a country exists it would not likely be a member of WIPO which imposes standards. Feb 4, 2021 at 19:00
-
@GeorgeWhite I believe that China is sort of infamous for this sort of thing happening, though I'm not sure if that's because of their laws or just preferential enforcement of their laws. Feb 4, 2021 at 21:45
-
Maybe in the bad old days. They have a very modern patent system now. jonesday.com/en/insights/2009/01/… Feb 4, 2021 at 22:01