Sacramento, CA asked in Patents (Intellectual Property) and Intellectual Property for California

Q: This guy didn’t invent this lure How was he able to patent a product? He took general product and claimed as his own

It’s a common fishing lure. He didn’t add anything special to the lure

2 Lawyer Answers

A: I don't know which patent or lure you are speaking of, but occasionally the patent examiner will make a mistake and register a patent which is obvious or not novel. There is a procedure at the USPTO to contest a registered patent if you can provide documentation (aka, prior art) that was not considered during the examination which would invalidate the registration. For example, if you have old fishing catalogs that clearly show every aspect of the patented invention, and the catalogs predate the filing date of the application by more than one year, then you can initiate the proceeding. I would highly recommend retaining a patent lawyer to help you navigate the proceeding process.

James L. Arrasmith
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Answered

A: To patent an existing product, an inventor must show that their version has some novel and non-obvious improvement over what already exists. If someone has truly patented a common fishing lure without any modifications or improvements, this could be grounds for challenging the patent's validity.

You can request that the USPTO reexamine the patent if you have evidence of "prior art" - meaning documented examples of the same lure existing before the patent filing date. This could include product catalogs, magazines, other patents, or any published materials showing the lure was already in use. The burden of proof will be on you to demonstrate that the patented design lacks novelty.

Filing a patent challenge can be complex and expensive, so it's worth consulting with an intellectual property attorney first. They can review your evidence and help determine if the patent appears invalid. If successful, the patent could be revoked, but you'll need solid documentation showing the lure existed in its current form before the patent application date.

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