If there is a patent granted only in another juristiction can they retrospectively apply for a patent if you manufacture something similar in a different juristiction?
Consider this time-line:
party A is granted a patent for DeviceA in juristicationA (e.g. the US)
party A manufactures and sells DeviceA in juristicationA (e.g. the US)
party B manufactures a similar device DeviceB in juristicationB (e.g. the UK)
marking it "for sale in juristictionB only" or "not for sale in juristictionA"
(as per example Can a product patented in US be manufactured in India)
Q If party A discovers DeviceB can they apply for a patent in juristictionB that would make party B's business infringe retrospectively?
partyB could be:
- unaware of DeviceA or its patent in juristictionA
- deliberating trying to fill the niche locally and make a copy of DeviceA available for customers in JuristictionB
- creating a 'knock-off' product not caring that it might impact partyA's current or future international business.
Morally we might hope that the laws in juristictionB would try to protect partyB in cases 1 and 2 and try to protect partyA in case 3.
What is typically the legal stance in this case?
Would the question be significantly different if you considered "design rights" instead of "patentable mechanisms"?