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Say I invent something and choose not to patent it but start producing and selling it, then if somebody else goes and patents my exact design what happens to my rights to sell/produce that product?

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    If you can prove you're selling the product beforehand, I'd guess you have a case to have the patent invalidated based on prior art. But my gut says you'd need to prove it in court, which could be an costly and time-consuming endeavor. – Patrick87 Sep 22 '15 at 13:23
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    @Patrick87 If it's public enough, the patent office will probably notice and not grant the patent (this is literally much of the point of Ask Patents). – cpast Sep 22 '15 at 14:04
  • @cpast is right anyway, in that if you're selling it prior, you've barred yourself and cannot get a patent. But you don't get to prove in court, regardless, that you may have had the idea first. Often people are working on the same things at the same time; hence, the first to file philosophy. Their is no invalidating patents on that basis. – gracey209 Sep 22 '15 at 15:28
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If you are producing and selling it, that is an absolute bar to patentability by anyone else (this is known as prior art). So if you are using it very publicly before they file, they can't get the patent.

  • If they do somehow get the patent, though, could you point out the mistake and get the patent invalidated? I'd assume so but IANAL and don't really know what I'm talking about. – Patrick87 Sep 22 '15 at 14:07
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    The fact that a patent shouldn't be granted too often doesn't mean it isn't granted. You should elaborate on that scenario: E.g., does one have to sue to challenge an invalid patent, or does USPTO offer an administrative challenge? Is it more cost-effective to wait for an infringement suit to (defensively) challenge the patent's validity? – feetwet Sep 22 '15 at 14:37
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    Producing and publicly selling it also prohibits you from patenting it in some further future. – Peteris Sep 22 '15 at 18:11
  • @feetwet In US law, it is common to see a challenge to a patent as a response to being sued for patent infringement. While a patent holder has a legal obligation to protect their patent by challenging infringers, if you have no patent, you are under no particular obligation to seek out and challenge patents to invalidate. The mere fact that you are prior art is sufficient to ensure no patent issued afterwards can affect you. However, cleverly worded patents may affect your ability to upgrade your product in the future, by patenting the upgrades. – Cort Ammon Sep 22 '15 at 23:29
  • Except in China. You must patent in China - the prior art concept doesn't exist. You must patent in China to prevent Chinese companies from flooding the market with your invention. Even if you hold a Chinese patent, a foreign company will face an uphill battle against a native company in Chinese courts. – noobsmcgoobs Sep 23 '15 at 3:15
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The U.S. is a first to file system of patent. If someone patents before you, they own it. It happens all the time: a bigger company steals an idea and patents it before some small inventor can. It costs a lot and takes a lot of money.

Your question may be better suited to Ask Patents. Here is a link to a similar question.

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    The US also has this thing called "prior art"... – Mark Sep 22 '15 at 21:27
  • Could you give an example of a bigger company stealing an invention from a small inventor and patenting it first? (Saying "invention" and not "idea"; ideas are ten a penny). – gnasher729 Sep 22 '15 at 22:24
  • Well probably best known contemporary case is the Facebook one. Apple and Microsoft gave battles since the advent of the first computer about ownership of a variety of ideas. There are many like cases. – gracey209 Sep 22 '15 at 22:39
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    "First to file" refers to how "interference" (two pending patents on the same invention) is handled, not how "novelty" (whether a patent covers something already made public) is handled. – Damian Yerrick Sep 23 '15 at 3:17
  • @gracey209: Which "Facebook case" exactly? What battles about the ownership of ideas? You are making some strong statements, they require strong evidence. – gnasher729 Jan 20 '16 at 20:40

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