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Here I have a product that was patented by my competitor only in the United States. I had the idea of launching it in Europe. Based on some research, I was able to find out that I don't have the right to patent the product in Europe because of "defensive publication".

But now I would like to know: if I start selling this unpatented product in Europe and after a few months the competitor files the patent in several European countries, can I still continue to sell it because I will also have my "defensive publication"?

Thank you in advance

  • If you could provide the US patent number for the product, we might be able to help you determine if there are applications pending in other countries. – Eric Shain Jul 4 at 13:19
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Possibly Yes

Patent rights are territorial. A U.S. patent gives the owner the right to (try to) control anyone else who would make, sell, offer for sale, import or use the claimed invention - in the U.S. Therefore, if the only patent is in the U.S. you can make it and sell it anywhere else without fear from any U.S. patent.

There are caveats - the patent you are looking at may not be the only patent that would be infringed by making or selling the product. The same inventor or anyone else might have a patent in one or more European countries that would be infringed by making the thing the U.S. patents covers. Let's say the invention was a self driving electric lawn mower only patented in the U.S. but someone had patents on aspects of a generic electric lawn mower in Europe. In making the self driving electric mower you would be making an electric mower.

Separately, the owner of the U.S. patent may have corresponding applications pending all over the world that were properly filed getting priority from the U.S. application or possibly a PCT application. If they are not issued yet, you can make and sell - until those hypothetical applications issue.

The two reasons you can't get a patent in Europe or anywhere else are (1) you didn't actually invent it (2) since someone else has a published patent the information about the invention not new. Even if you had invented it independently, the fact that someone else has publicly sold it, or had an application/patent published, or had written a magazine article about it first makes it no longer new.

If I understand your question it seems that you think you made a defensive publication. If the information was already disclosed in someone else's patent nothing you published made a difference. Who publishes is irrelevant to the fact that any publication/patenting by anyone makes it no longer new and therefore unpatentable anywhere in the world - other than the special case of publication by the inventor in countries with a grace period.

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