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Not sure in that case. If B can prove that they were using it first, then it's possibly prior art (or else obvious) and A's patent may be invalidated.



IANAL, but I believe that's only true if B was using it before A filed. The order described was "A files, B re-invents, A's patent is issued". It may have some weight in arguing that the invention was obvious, but my understanding is that this is harder than invalidating a patent based on prior art.




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