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I thought I came up with a new invention but unfortunately found that it was already patented in China. I am in the US and it wasn't patented here. I was told that I could in theory, build and sell the product anywhere that the patent wasn't filed in. If I do decide to do this, does this mean that I can do this and only hope the inventor doesn't decide to then file a patent in the US after I already began selling the product? I assume if they ever decide to file here, the moment it goes through, the business is screwed if they also decide to fully block any use of their idea or in the best case, ask for royalties?

If this is the case, I personally find it profoundly contradictory that this is possible. One reason to patent is to tie your name to an invention so you get credit and another is to protect your idea from copy. If someone can just make your invention in any other country and sell it because the patent in the origin country isn't recognized there in terms of actual creation purposes, it's disengenuous to then also say "oh you can copy and sell it, but you can't patent it". Yeah it's not original by that point, but the real purpose now is legal protection for business purposes because it's just a risk to put in all the time and effort to making the idea reality and starting a business around it, just to have someone come in at any time to shoot it all down (Especially annoying when they have done nothing in any other country or even their own to signify that they wish to make something out of it either). I'd say just make it consistent in both areas: Either have a patent and the legal protection for copying be globally applicable or allow for patentability and copying everywhere else besides the origin nation the patent was filed in. Seems more consistent that way.

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I do not see any contradictions.

The idea of patents is to give an incentive to invent something new and disclose it to the public. Without patents an inventor might either not create something new or might create it but try to profit from it in a way that kept it a trade secret. It is not designed to be a way to give the inventor glory.

The social contract is — you tell the world all about it and we (the relevant government) give you a time-limited monopoly in return.

The inventor in China has a limited time to file in other places around the world. If that time has gone by you can stop worrying that they will get a patent where you are making and selling it.

Generally speaking nations make and enforce laws within their boarders as they have legislated. Patents are no different than most legal topics. The U.S. makes rules about things that happen their, as does China. Countries have made treaties that make it easier to get related patents for an invention in many places but the exact criteria and processes to get and enforce a patent are country or region specific.

Things were not always global. In 1400 Venice the patent law said the first person to import some new cool item got a time-limited monopoly to do so. Didn’t need to be an inventor or show world-wide novelty. I think some third world countries still only need local novelty.

Before the world was so global (actually before 2013) the US law said a foreign patent was prof your U.S. invention wasn’t new, and a foreign printed publication showed your US invention wasn’t new, but another way to show a US invention wasn’t new was that it was already “known in this country”. After the AIA, if it is known anywhere it is not considered new in the US.

Last, in no country does a patent give you any positive right, say the right to make and sell it. It only gives the right to try to stop others from making, selling, importing, etc.

The product area might be highly regulated, like firearms or gambling machines or your patent might be an improved version of something another has patented such that to build your improved device automatically infringes their rights.

You seem to suggest that you, for example, might get some exclusivity because you were the first person to invent something in your location. Since it has already been invented and published elsewhere in the world there is no way to show you independently invented, and if two people claimed to be the first to invent something in country X that was already published in country Y how could anyone tell who to give the party to?

Regarding your primary worry - Under the Paris Convention an inventor has 12 months to file everywhere after first filing somewhere. Within that they can file a PCT application which is an application in 140+ locations. At the 30 month point from first filing the applicant must enter those applications to the national stage anywhere they want protection (costs money). Some places are at 31 months and some allow short extensions. If nothing is filled in your county or via PCT at the 12 month point they can never file there for that invention.

What else from who else might get in your way is unknown. You can sell a car with an un patented engine but get in trouble due to patented tire tread patterns.

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  • Part 1: All very interesting context! Thank you for the response. My primary concern is not that I should get any exclusivity, but more of a question of whether if I or anyone else wants to make the product here in the US, even though the inventor didn't file here, at any point I am still liable for the inventor coming in and halting all business practices by then filing a parent here (Since I cannot but still can make the product). Now you said that they also have a minimum time to file in other countries after submitting the original in China.
    – Richard
    Commented Oct 19, 2022 at 20:36
  • Part 2: I saw on the WIPO site that this time frame is 18 months. The original parents were filed 7 years ago and I did not find any international patents nor USPTO parents that they've filed since. So, does this mean I don't have to be concerned about them interrupting the business and may go ahead with production without any repercussions?
    – Richard
    Commented Oct 19, 2022 at 20:36
  • Under the Paris Convention an inventor has 12 months to file everywhere after first filing somewhere. Within that they can file a PCT application which is an application in 140+ locations. At the 30 month point from first filing the applicant must enter those applications to the national stage anywhere they want protection (costs money). Some places are at 31 months and some allow short extensions. If nothing is filled in your county or via PCT at the 12 month point they can never file there for that invention. What else from who else might get in your way is unknown.
    – George White ♦
    Commented Oct 19, 2022 at 20:57
  • Got it, thank you!
    – Richard
    Commented Oct 20, 2022 at 15:02

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