Infringement yes or no

[e28champ]

What is the name of your state (only U.S. law)? Colorado
I have a patent that is being infringed upon by a couple companies. I have been in touch with one of them about this issue. My patent was filed in 95 and they started making a similar product in 96 so I was first. They have been doing some research and found a different company that has been making a like product for many years before me. It's my guess that this other company does not have a patent because it does not show up on a search.
There belief is that since there is a company that has been making a like product long before I patented the idea that this other company is safe from infringement and that they(the company I have been talking to) is also safe from infringement. Their attorney said that if I filed a suit, I would get nowhere.
What is your opinion about this situation?
Thank you

[divgradcurl]

If you have an issued patent, then you can enforce your patent against anyone else who is infringing your patent -- there is no "grace period" or "grandfather clause." That said, if someone really was making and selling a product that your patent covers before you filed the patent, then that product may be "prior art" that can be used to invalidate your patent in a lawsuit.

Your best bet if you think infringement exists is to sit down with a patent attorney who can review you patent and all of the facts and advise you accordingly.

[e28champ]

Thank you for your reply. What is not clear yet to me, is it considered proir art only if there is a patent on it? I can see where that would invalidate my patent. Or, is it also prior art even though this company did not patent the idea but was manufacturing and selling it long before I patented the idea? If this is the case then I had no way of knowing there was proir art if they did not patent this idea.

I don't know at this time if they patented the idea or not.

[divgradcurl]

What is not clear yet to me, is it considered proir art only if there is a patent on it?

No. Prior art is just that -- art that proves that you were not the first inventor of a particular invention. A patent is certainly one form of prior art, but any evidence of prior discovery -- an article, a notebook, a marketing or advertising piece, a model, etc. -- can be prior art, if it can be authenticated (that is, if the date can be nailed down) and if it "discloses" the invention.

Or, is it also prior art even though this company did not patent the idea but was manufacturing and selling it long before I patented the idea?

See above. If someone else was making and selling your patented product before you filed for your patent, then it is potentially prior art that can be used to invalidate your patent.

If this is the case then I had no way of knowing there was proir art if they did not patent this idea.

This is irrelevant to the question of whether or not your patent is valid or not. A patent in the U.S. can only issue to the first inventor of a particular invention (there are a few narrow exceptions to this rule, but they probably don't apply here). So, any evidence of prior invention can be used as prior art -- there is no requirement for anyone to patent anything, so that fact that an earlier inventor may have not patented the invention has no bearing on whether or not you are entitled to a patent.

That said, just because someone was making and selling your patented invention before you applied is not necessarily a death sentence for your patent. First, someone has to try and get your patent invalidated -- it doesn't happen automatically. Second, if someone does try and get your patent invalidated as part of a court proceeding, then your patent is entitled to a presumption of validity -- which makes the burden of proof quite high for the other side. Third, if someone tries to invalidate your patent via reexamination in the USPTO, you will have a chance to argue why you should still be entitled to a patent. And finally, there may be technical issues why the other product doesn't invalidate your patent -- you may still be able to prove an earlier date of conception, the other product may have some subtle differences, etc.

Your best bet is to sit down with a patent attorney who can evaluate not only the infringement case, but also the risks of your patent being invalidated.