The Patent Mess

EmmaDay · 5 September 2019 at 8:05PM

Hello everyone,

Hope you're all well.

I'm new at the forum today, I come with a general question as I know this isn't a legal forum, if possible I'd like to ask for people's opinion on something please.

The following is a hypothetical question only, but please bare with me.

Company #1 creates product with unique idea.
Company #1 goes bankrupt after one year due to running out of money.
Company #1 sells the assets to Person #1.

Company #2 comes along, copies product and unique idea, and patents the concept of the product and patents the unique idea.

Company #3 comes along and copies the product and unique idea. Company #2 sues Company #3 for damages. Company #2 and Company #3 settle out of court.

Company #4 comes along, likes the product and unique idea that Company #1 released.
Company #4 locates Person #1 that the assets were sold to, and purchases the assets from them.
Company #4 isn't aware the unique idea from Company #1 was patented by Company #2.
Company #4 announces a re-release of the product with the unique idea.

Company #2 becomes aware of the announcement and approaches Company #4 and demands damages, and tells Company #4 to handover all the assets they purchased from Company #1.

So, my question is, in this scenario, where would Company #4 stand.

Again, this is just a hypothetical question.

Thank you all.

psychic_teabag · 5 September 2019 at 9:19PM

Did company #1 actually manufacture and distribute the product, or did it never leave the drawing board ? If it was published in some form, that would appear to be prior art and would invalidate the patent.

That said, https://www.epo.org/learning-events/materials/inventors-handbook/novelty/prior-art.html seems to suggest that it could be prior art even if the product never came to light..

https://www.henrypatentfirm.com/blog/prior-art-invalidate-issued-patent

dj1471 · 5 September 2019 at 9:21PM

Hypothetical, sure. I always come up with really specific hypothetical questions just for fun :undecided

Anyway, the answer is that Company #4 should seek to get the patent invalidated on the basis of prior art, i.e. they can demonstrate that the idea existed before it was patented.

Have a read here:
https://www.epo.org/learning-events/materials/inventors-handbook/novelty/prior-art.html

unrecordings · 6 September 2019 at 10:16AM

Patent litigation, and dealing with the IPO is either really expensive, takes literally years or both. Company 4 should have done their due diligence more diligently and either walked away or got better lawyers. So Company 4 is stood at a bus stop with a lame turkey and any liabilities depend on the exact nature & validity of the chain of transactions. In other words very expensive to iron out and the product could be dead long before that happens