Q: I created a unique plant fertilizer product that is retail. I solely control formula and want to protect & patent. How?
The product was registered, tm and certified by all governing bodies in order to sell.
Trade secret formula as of now
Wow, you already went through the regulatory dance. Great!
To get a patent, contact a patent attorney to get you started. (I do patents for formulations on daily basis for my clients, and I've done some in ag chem).
Make sure that you have some good data over other common fertilizers, and most importantly, over the combination of ingredients. If your ingredients are known, then the data is more important then if the ingredients are new chemical entities. What I mean is that if someone takes an ingredient that raises phosphorus and an ingredient that raises potassium, and mixes it together, and it simply acts as a mixture of these two ingredients, then that would not be patentable, even if nobody has ever mixed those two ingredients before.
You must file a patent application if you'd like a patent. I could certainly help you with that, as I have specific experience working with Montanto and Scotts in this area.
Because I'm familiar with how long the regulatory process takes, it's likely that patent protection is barred. Inventions that have been offered for sale, made public, or sold for more than 1 year are not eligible for patent protection under US law.
Griffin Klema agrees with this answer
I hope that you have not had any sales of your product.
As of March 2013, the rules were changed so that any sale (public or under an NDA) including sales from your suppliers to you count as a bar to seeking a patent. This was a surprise to many including the United States Patent and Trademark Office which thought that secret sales did not create any bar to seeking a patent. However, the US Supreme Court has recently ruled that secret sales bar obtaining a patent. We will need to await for Congress to fix this mess. See my slides at http://bit.ly/Secret_Sale_is_Prior_Art
Note that secret sales do not count as prior art in many other patent systems so you may be able to seek patent protection in several important countries outside the US even if you had sales under an NDA.
If you found this answer helpful, you may want to look at my answers to other questions about patent law are available at the bottom of my profile page at
Kevin E Flynn
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