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Let’s say I use a very specific software communication technique applied in a novel way that could be patented. I don’t patent this invention because I am a startup that has little money to invest in an unproven application.

A few months/years later a large company independently patents this invention.

Can I continue using this invention ("practicing the patent" in patent terminology) without risk of successfully being sued?

We can assume there’s proof I was using this invention prior to the patent.

Does this change depending on whether big company had knowledge of our usage at time of filing the patent?

Jen
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Josh
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2 Answers2

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There is a prior commercial use defence to patent infringement.

Further, if the invention was previously disclosed publicly ("prior art"), then one could even object to the issuance of the patent.

Jen
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16

"Can I continue using this invention" Yes you can, if you do indeed have proof of prior art/prior use.

"Can I continue ... without risk of being sued?" No. There is a significant risk that the other party will sue - they (probably) wouldn't have paid for the patent in the first place if they didn't intend to 'defend it'.

"Can I continue ... without risk of successfully being sued?" How much money do you have to pay for a good lawyer? If your answer is 'none' then I'm afraid the risk is again significant. If you've got a good lawyer, then the risk is a lot lower, but never quite zero.

MikeB
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