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Suppose company A thought they developed something new and attempted to patent it. But in actuality company B already patented the same thing a few months ago. However when company A was filing the patent, the patent examiner overlooked company B's patent because there is simply too much existing patents to go over to check for infringement, and he granted company A's patent.

After a couple of years, company A starts to make and sell a product based on the patent, and company B saw it and rightfully decides to sue company A. It seems to me company A is very unlucky in the sense that they have to pay all the consequences even though the fault is on the patent examiner. What is typically done in this type of situation?

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The validity of the other patent may be challenged, or, a simpler approach, a license may be obtained. Regarding the insufficient work of an examiner, well... that's unfortunately something we have to live with.

I personally come very often across patents that are ridiculous in light of prior art, or they are even prior art themselves. In those cases, one should also consider if they are really enforcable (and if not, to what extend can that be useful to the other party).

  • What if company B refused to license the patent or decides to purposely set the price to be very high? – user3667089 Sep 22 '17 at 22:06
  • @user3667089 bad luck, mostly. Maybe “friend“ licensing applies if the patent is standard relevant. – DonQuiKong Sep 23 '17 at 11:41
  • @user3667089 I agree with DonQuiKong. In cases of such agressive behaviour, which I suppose is not very rare, the only option left is to challenge the patent's validity. In other words, "see you in court". – chempatent1981 Sep 25 '17 at 12:04
  • @user3667089 Alternatively, company A might file a request for reexamination of its patent in light of specific prior art of B and end up with a watered-down patent having valid claims of different scope. – Upnorth Sep 26 '17 at 6:31

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