I have a product I want to sell in USA, and there is only one similar product like mine which is sold solely online and in Whole foods here is US, but the product shows 2012 patent pending on its packaging. Moreover, this same product has been sold in other Asian countries for many many years.Can you patent something that already exists in another country, and Can I get into legal trouble if I introduce that product in USA?
Please advice.
Thanks a lot.
Answer
I don't have enough facts to make a real analysis of your situation. In general you can determine whether you have a product that you can sell is by getting a freedom to operate analysis from a reputable patent attorney. He may only be one individual but there may be others in the field who have existing patents that could come after you as well.
Bottom line is to talk to a reputable patent attorney in your area who can assist you. Good luck!
Answer
In the U.S., if a product embodying an invention has been offered for sale or publicly available in the U.S. for more than one year before the applicant files the patent application, then the invention is not patentable. If you have a product you want to introduce into the U.S. and you are concerned about patent infringement, there are at least two things to consider. First, whether a valid issued patent exists having claims that cover the product at issue. If not, then you may want to consider whether there is a pending patent application covering the product. If there is, then you will want to consider market entrance costs. Are the costs to bring the product to market low compared with the risk that a patent will issue covering the product? Of course, you should consult an experienced patent regarding the specific facts affecting your decision, as you will want a thorough analysis done before making such an important decision. I am a registered patent attorney. Feel free to contact me with further questions.
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