I have a design patent which expired 3 years ago. I see many similar inventions on the market now, could I sue for infringement or can I still put this into production?
ANSWER
You (and anyone else for that matter) should be able to make the design as described in your expired design patent, provided that no one else has a non-expired design patent on a similar design. However, it is unlikely that if your design patent expired at the end of its 14 year life, that there would be any senior rights in the design. Of course, it is possible that a utility patent might still be in force because these are valid (if maintenance fees are timely paid) for 20 years of more from the filing date of the utility patent application.
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Comments
Friday 25 of January 2013 – posted by Bill
Patents also have a presumption of laches after six years. So, although your design patent expired three years ago, you may be able to seek damages that occurred more than three years ago, but less than six years ago. In other words, you might be able to still file suit for infringements that took place between 3 and 6 years ago.
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