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something I’ve wondered for a while:

Suppose someone invents something and uses it for their products, but never publishes anything about the invention, and then someone else (years later) independently develops the same thing and gets a patent that covers the first invention.

Is the first person now infringing the patent, or can the fact they were doing it first (even though there is no published info to serve as prior art) give some rights to keep using it?

(I understand any responses are not legal advice and I should ask a lawyer, etc, etc)

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IANAL. This is my current understanding. If I'm wrong, feel free to correct.

Using it in a product counts as "public disclosure". If you've shipped it, that's a public disclosure for patent purposes.

But it's more complicated than that, because you can file for a patent on something within one year after the first public disclosure. That also means that you can file within one year after someone else publicly discloses something, if you lack morals and decency.

So if person A develops something and starts shipping it, and person B files more than one year after the first shipment, then the device is now "prior art" that invalidates the patent. Person A faces a legal fight, but they shouldn't be infringing, because the patent should be invalid.

Just to be clear, in the US you must be an inventor to file. You can't take someone else's invention, once publicly disclosed, and then patent that within the one year period. But if two people have same invention the first to file usually has precedence.

Of course in practice there are thousands and thousands of trash patents but technically those are the rules.

If first person has proof through dated notebooks, schematics, or internal documents they would likely be fine. However, second person may still have valid patent to assert elsewhere if there was never anything qualifying as public disclosure by first entity. Particularly under current doctrine.

Relevant statute:

https://www.law.cornell.edu/uscode/text/35/273

Real answer though is "it depends", so ask a lawyer about specific facts.

‘It depends’ - but generally the first person is now infringing.

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