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I currently sell bed bug traps on Amazon. I've been selling them since March 2017.

Recently I received a complaint from the rights owner of this patent: https://patents.google.com/patent/US20110225873?oq=patent:20110225873A1

It looks like they were published today: 2019-08-12 Application status is Active

My question is: I have been selling since before this patent was active. Also, I had no idea there was a patent application to begin with. Do I have to stop selling my bed bug traps?

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  • For your next patent question you might post on Ask Patents patents.stackexchange.com instead of law. You will get better answers. – George White Aug 13 at 4:54
  • It doesn't appear they'll get any answers at all on Patents SE, if/since the front page is a reasonable indicator of the activity there. – Nij Aug 13 at 5:30
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Maybe

You linked to the publication of a patent application, not to a patent. Based solely on looking at the format of the number the answer would be, Yes, unless it eventually became an issued patent.

As it happens, it did become issued patent US9066511B2. That would make the answer no. Since the application was filed before you started selling them, the fact that you were selling them in 2017 could not be used to challenge the patent. I say the answer is maybe because the patent has been disputed in court and I do not know if the outcome has left the patent valid. You can look this up at the USPTO Public PAIR. Then you need to search with either the patent number or the publication number. When you get to the record of the history of that application look at the Image File Wrapper tab.

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  • And of course, if you were selling them before the patent was filed, that still leaves you with a burden of proof and a cost of litigation, and commercial problems with your distributors until the matter is settled. – Michael Kay Aug 14 at 14:19
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No

Assuming the patent is valid and assuming you are actually violating it.

“Bed bug traps” is not something that is patentable. This particular novel and new way of making a bed bug trap is patentable. So you can sell “bed bug traps” so long as they don’t work the way theirs do.

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  • More accurately, as long as the ones you sell do not infringe on the claim wording of any of the claims of the patent that eventually issued from the application you have linked to. – George White Aug 13 at 4:52

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