Question: I have a product that I wish to patent. After an attorney conducted the search he said item is patentable. However this product has been on the market for 5-6 yrs now and others are selling it. I was told that I can not patent it. But my attorney disagrees and said I can patent it because no one has file a patent on it. I'm not trying to run others out of business just wanting to stop new-comers. With everything in consideration I'm not sure what I need to do. Plus he said that the patent office only searches their own database to make sure there isn't anything similar which there isn't. So he said I can get it. He has 20 yrs exp. Any suggestions will be greatly appreciate.
Answer: Your attorney is right – but only partially. When you file a patent application you have a duty to disclose prior art to the patent office. That includes prior sales of the invention. Therefore, if you comply with your duty of disclosure, the patent office will know of the prior products and use them to reject your application.