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If an inventor chooses not to apply for patent, but instead to produce and sell a "fad" product, can the profits thereof be taken away by a subsequent non-inventor who applies for and receives a patent on that item? Or is the production and sale of the original item prevent its being patented at a later time by anyone?

Before I produce and market the invention, I will make sure that it is not protected by an existing patent. If it is, then obviously I will not proceed. If it is not, I will try to market it as quickly as possible and try to extract as much value before there are imitations. If I reveal my invention by applying for a patent, I know there will be similar devices in production shortly thereafter, and I cannot afford to get into litigation over it. It took me 2 years to get my last patent and several 'inventors' have cited and modified my original design and have also received patents on their 'new' inventions.

  • Since it takes 18 months for an application to publish, there is always some risk even if you do a thorough patent search. – Eric Shain Mar 27 at 13:40
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By saying "non-inventor", I taking it that the person who applies for the patent has stolen the idea from looking at your shipped product. In that case, they should not get a patent since the product was in the public before the application was filed. On the other hand, if the applicant actually, independently, invented the item and filed before you unveiled your product then they might get a patent and could stop you from further shipments. There is a possibly that they could get royalties for your shipments as of the day their application published and you were notified.

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In order to receive a patent, the technology described has to be novel. Any product on the market at the time an application is submitted would constitute prior art and should preclude any one else obtaining at patent on it. However, I will caution that a patent application typically takes 18 months to publish so it is possible someone applied for a patent without you knowing about it even if you did a thorough patent search. If that application were filed before your public disclosure of the product, then it is at least possible that the patent could issue and be used against you.

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