If it can be demonstrated the prior trading of a product that is subsequently been patented by others, can the patent be annulled?
The law foresees that whoever has made use of the invention in his firm, in the twelve months prior to the date of filing the application, can continue using it within the limits of the pre-use. This means that who produced the item before, can continue to make and sell at the same conditions, without further expansion.
According to some experts there would also be a precise limitation to only selling within the areas where it has been done until then. From this, we can conclude that no one can act against whoever produces as per the pre-use right, for counterfeiting or for damage compensation. The matter is different in relation to the possibility of annulling the patent application filed by a competitor. In order to put this into practice, the production must be consistent and, above all, by simply observing the object without any other analysis one must recognize the technical novelty characterising it.
On the contrary, in fact, there would be no disclosure. If, for example, the patented object is an internal part, it will be difficult establishing that this invention was part of the technical status. If, on the other hand, the disclosure has been clear and complete, then there could be a possibility of asking for the invalidation of the patent.