Q: Can I go after a company for copying my product if I only went through the patient pending submission for the year ?

Didn't have the money to go all the way through the patient process. Another company got a hold of our product for the intent to closely reputicate it. What can we do legally or can we start the patient process all over again to try and protect ourselves before they do ?

1 Lawyer Answer
Kevin E. Flynn
Kevin E. Flynn
  • Patents Lawyer
  • Pittsboro, NC

A: If you had a public sale of your product, then your public sale put the product into the public domain and you cannot start over to seek a patent on that product. You could continue with the patent process if you started the process before the first public sale and did not abandon the process or did not fail to replace a provisional application with a non-provisional application.

What sort of sale would not be a problems?

If you sold the product to under a Non-Disclosure Agreement that meant that the product was to be used by the buyer but not disclosed to others, then you can seek a patent (there is a tiny bit of doubt about that but the Patent Office believes you can seek a patent under that situation).

99.99 percent of sales are not under a non-disclosure agreement so chances are that you are out of luck.

If the product was not being sold to the public but the product was shared with these people under a non-disclosure agreement -- such as they were vendors who were going to bid on making the product for you, then you may have rights under your contract with the vendor or under trade secret law and other business torts. You would need to consult litigation attorneys in the relevant state to sort out your options.

I hope this helps.

Kevin E Flynn

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