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


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.

|improve this answer|||||

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.

|improve this answer|||||
  • Can you explain the need for the additional 6 months after a patent expires to avoid infringement? – Eric Shain May 13 '19 at 15:56
  • @Eric Shain - sorry, it is six years, per statute of limitations 35 U.S.C. § 286: "Except as otherwise provided by law, no recovery shall be had for any infringement committed more than six years prior to the filing of the complaint or counterclaim for infringement in the action." – George White May 24 '19 at 1:09
  • I think what your comment means is that you can't sue for infringement which happens more than 6 years before you file suit for infringement. However, I don't see how you can infringe a patent if you start selling the technology even one day after the patent expires. Your answer suggests that the patent actually expires 6 months after it expires which is what I find confusing. I guess you could be saying if you are currently infringing, you should stop infringing, and wait 6 years. However, I still don't see why you have to wait until later than the patent expires. – Eric Shain May 24 '19 at 1:16
  • You are correct for someone who is not infringing. I understood the question to postulate that he is in fact currently infringing. "If in my invention or product uses an invention that was previously patented " – George White May 24 '19 at 1:21

Your Answer

By clicking “Post Your Answer”, you agree to our terms of service, privacy policy and cookie policy

Not the answer you're looking for? Browse other questions tagged or ask your own question.