I have been selling a specific type of stretch textile for years.
Recently, it has come to my attention that one of my competitior has
filed several patent applications in connection to the textile
materials that are either the same or similar to my products. So is
there anything that I can do to protect my rights with regard to my
stretch textile products?
Your competitor is not entitled to a patent if his invention is indeed the
same as yours, or would be obvious in view of yours, and if you were
selling
it (or products made with it) before he invented it, or more than one year
before he applied for his patent.
So much for the bottom line. The next question is what you should do. The
answer is: consult a patent attorney concerning the best way to proceed.
Your attorney will probably write a letter to your competitor advising him
that his patent application is not sustainable and should be abandoned. If
your competitor does not cooperate, he will file an interference: a legal
action before the Patent Office which contests the validity of your
competitor's patent application. This will be time-consuming and
expensive,
but much less so than defending an infringement action if your competitor
gets the patent and tries to enforce it.
I could be mistaken, but I believe an interference proceeding is only
available to persons with either a pending application or an extant
unexpired patent (which might apply to OP) ... however, I believe 37 CFR
1.913 et seq provides for inter partes reexamination at the request of a
third party
There are also provisions for third party filing of relevant prior art which
might help; however, it is not clear that the examiner will necessarily do
much with such submissions
It's entirely possible that competitor's invention is patentable and that
OP's goods are not infringing; if so, he could just carry on as usual,
perhaps at a competitive disadvantage ... perhaps not; assuming allowance
of the patent and competitive disadvantage, licensing should be considered
OP needs to get the facts assembled and develop a strategy with the
assistance of counsel; one problem for counsel may be that the patent app
is yet unpublished and OP is (perhaps) getting his information from
"industry buzz" ... still, there are multiple avenues available; you are
certainly correct in pointing out that defense of infringement would be
expensive (very expensive) ... candid discussion with competitor might be
advisable (with assistance and participation of counsel) ... litigation is
expensive and undesirable for them too
