Patent Application already exists for my idea, but not granted for six years

Question

Basically, I had an idea for a product that I was not intending on patenting, but merely to sell on a small scale and see how it did. However, after a bit of research I found that someone had already applied for a patent for the idea in 2010.

However, this patent application is still in A1 stage (I'm not entirely sure what this means) and has not been granted for nearly 6 years, so I was wondering what that implies about the status of the patent, and more importantly whether I can still go ahead and continue with my plan as there isn't a 'granted' patent for it?

Apologies, I'm very new to patent law. The patent I'm talking about is this one: http://www.google.com/patents/WO2010002751A3

Answer 1

Based on the situation you describe - if you produce and sell your product, you run the risk that the pending application will result in an issued patent. If this patent's claims cover your product, your product infringes the patent.

This being said, a patent may not be obtained for an invention if it is not new or contains only obvious differences from prior art. Due to the given dates, I assume that patent law is applicable that was in effect before the provisions of the America Invents Act got enacted.

Did you publish your idea? If you can prove that the claimed invention was publicly known before the date of invention, the application will be rejected as not new (Pre-AIA 35 U.S.C. 102(a)).

Did you use or sell your product? A patent will not be granted, if you publicly used or sold your invention more than one year before the patent application was filed for the same invention (Pre-AIA 35 U.S.C. 102(b)).

However, the Pre-AIA patent law does not provide a "prior user rights" defense (except for business methods).