A competitor has a patent pending on my technology

質問

I have been working on a novel tech solution for 6 months. Just found a competitor company which has a patent pending. How should I react?

My colleague and I had been scanning the market for solutions similar to our others but nothing ever turned up. Now we found this direct competitor and they have filed patents. What would generally be the best way to proceed on this?

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回答: 3 public & 0 非公開

Steven weinrieb
弁理士

There are a lot of facts missing here for a realistic solution to be provided to your problem. Firstly, you say that you have been working on a tech solution for six months, but you did not mention when the competitor filed his patent application, and as has been noted, the US is now a first-to-file country, so if he obtains a patent, he will have the patent rights to the technology. Under the AIA, Section 102, one can obtain a patent unless the subject matter has been in public use or on sale before the competitor filed his patent application - so the question is, did you publicly use your solution or was it on sale before the filing of the patent application by your competitor?
Secondly, what you should do, and basically all you can do, at this point in time, is to monitor the patent application because it is not yet a patent - therefore there are no specific claims that define what is patented - patent application claims are basically meaningless - the competitor, as of now, has no patent protection because the patent hasn't issued as yet, and when it does issue, the claims may be significantly different from the application claims. So monitoring the application, following the prosecution of the application within the patent office, would be the best you can do at this point, keeping in mind or being aware of what is being claimed and possibly anticipating what the final, issued claims will really comprise - then you would have to decide if you do infringe the claims, can you design around the patent claims, whatever. This should definitely be discussed with a patent professional.

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