thanks for reading this post.

I listed a product online to sell. But my competitor claimed that I infringed his design patent. I looked at the patent and it looks exactly like the product I am selling. So I removed my listing as I do not want to infringe anyone's right. None of my product is sold.

However, a question occurred when I did some research.

My competitor has been selling the product for years before he filed and issued the patent. I read somewhere that a product that has been disclosed to public (in my case, selling on Amazon) for more than a year cannot be patented - statutory bar date?

If what I read was correct, how could he have gotten the patent?

If the patent examiner did not catch this and issued the patent by mistake, is there any way to revoke the patent and allow everyone to use the design?

The product design in question is a common design that many sellers are currently selling on Amazon and I am puzzled as to why the other folks can sell the same design when my product is claimed against.

Here are some facts: Competitor Patent issued : Feb 25, 2020

Competitor Patent filed : July 24, 2018

Competitor Selling the Product : Since 2016

My Listing Created: Jan 27, 2020

Pattent #: D876.127S

Thank you in advance for your advice.

  • 1
    Can you provide evidence that the product was available in 2016?
    – Eric S
    Feb 28 '20 at 19:55
  • Eric, Yes. The competitor's Amazon review page has hundreds of reviews of the product with pictures dating back to 2016.
    – SKC
    Feb 28 '20 at 23:41
  • I'm not a lawyer so I'd rather a lawyer answer. The way I think it works is they can sue you and if you have evidence there is prior art then you are likely to win the suit and the patent will be invalidated. However, you really need to consult with a lawyer about this and not rely on the internet. Also, unless your product looks pretty much exactly like the patent images, you also probably avoid infringement. This article might be helpful: ghbintellect.com/five-ways-to-invalidate-a-patent
    – Eric S
    Feb 28 '20 at 23:56
  • You are right. Thank you Eric!! It will all boil down to cost as I have solid evidence that the product was sold way before the patent was filed. Since I didn't import many units and the loss on my end is only a change, it seems like a logical idea to just modify my design a bit and get back in the game instead of going to a long and costly battle... Thanks.
    – SKC
    Feb 29 '20 at 0:07
  • Can you prove that the design was %100 the same product design since 2016 with nothing that has strayed from the design information?
    – Lilibete
    Mar 8 '20 at 14:26

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