Is going against prior art that conflicts with my patent or product with 10 years remaining or 10 days remaining the same?

edit:

If in my invention or product uses an invention that was previously patented (prior art), does it make a difference how long is remaining in term for this prior art?

Would it be harder/easier to obtain a license or fight against infringement?

  • 1
    Could you clarify your question? – DonQuiKong Dec 4 '17 at 16:20

I am not a lawyer, so this is a layman's reply. Assuming the patent is valid, you are breaking a law by infringing. Now if your product is obscure, the patent holder might not notice, but really even without the legal aspect, infringing on a valid patent is essentially stealing someone's intellectual property. To me this is an ethical issue. As I said, I'm not a lawyer, but I believe willful infringement can incur greater penalties if you are sued. As for licensing, I'm relatively confident it is cheaper to license than to be sued considering you would be in the wrong and the infringement is willful. As for the length of time before patent expiration, clearly if the time is only 10 days, you would simply wait. The longer the patent has until expiration, the more valuable it is and that would be reflected in the licensing terms.

If you are actually infringing a patent that has 10 days left before it expires, you could wait six months and 10 days and hope you do not get sued. By the way, prior art and a patent you might be infringing are not technically equivalent.

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