Dekalb, IL asked in Patents (Intellectual Property) for Illinois

Q: Can I file a US Patent for a product being sold in a foreign country?

Does the fact that the product is on sale in a foreign country bar me from filing a patent for it in the US? Upon further investigation, no patent application exists for such a product in the US. Does the same go for if the foreign product has an article written about it in a foreign magazine? Thanks.

2 Lawyer Answers

Peter D. Mlynek

  • Patents Lawyer
  • Moorestown, NJ

A: If you did not invent it, then you cannot get a patent on it. You cannot just copy someone else's work and claim it as your own.

Further, even if you invent something, spending lots of time and money inventing it, but someone else on the other side of the world invented the same (or almost the same) thing which they then sell or write about in an article, you still cannot get a patent for it.

Also, although you did not find a published patent application on it in the US, it is possible that it exists, but it has not yet been published.

J.D. Houvener

  • Patents Lawyer
  • Mountlake Terrace, WA

A: Yes, you may! As long as you are the inventor and the product has only been sold to the public for less than one year. The public sale will likely preclude you from having protection in some countries outside the US, as many European countries are what's called "absolute novelty" countries, where they require that the invention never have been disclosed to the public.

There will be many things to consider as you move down the path of filing. I heartily recommend you seek the counsel of a Registered Patent Attorney.

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