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If I skip a patent can I still sell

everydayingenuity's Avatar

I have a new and novel innovation I have submitted it.  It is a garden invention that is extremely inexpensive to produce. If it dosnt pass through Edition Nation, I would like to produce it my self. I have no dout every garden store in my state will carry it, I won't get the box stores but a small extra income on the side. I do not have the money to patent it, so my question is if I produce and sell the product and a year from now someone puts a patent on it will I loose the right to continue to produce it? FYI I do know how to do a patent search and did not find any prior art relating to this invention.

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karitervo's Avatar

From what I understand, you can protect yourself for a year with a provisional patent application, which is pretty inexpensive (like a hundred bucks). That way you can list it as "patent pending" while you gather the necessary resources to get a patent. Good luck! I hope it does pass through EN's stages successfully!

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magurn's Avatar

Hi Carrie!

First, I wish you the best of luck with your submission!

Second, regarding your question, Edison Nation cannot provide legal guidance on patent matters. We suggest you consult with a patent attorney to determine next best steps for your concept.

Thank you!

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crystaldiane's Avatar

Hi....you can seek patent info from uspto.org. many people are choosing to forgo the patent process in order to take advantage of first market sales simply realize that you would be most likely giving up any  rights to patent your product due to prior public disclosure. Only you can weigh the risk it's highly likely that if you have a popular product someone will knock you off and without any patent protection you would lose any rights to be compensated for your invention however maybe that doesn't matter in your case maybe you would make enough money where it didn't matter those are Personal decisions..... and yes I agree it would be best to talk to her attorney so that you understand what you would be giving up even assuming you could be granted a patent...which is no guarantee of course best to you. There is one other compelling argument for a patent search and that is you may be inadvertently infringing on another patent and and find yourself at the wrong end of this deal where you would owe somebody money for infringing on thier patent... So tread carefully

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everydayingenuity's Avatar

Thanks for your answers guys. 

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gru's Avatar

One inventor, Stephen Keys, says that often times it's 1st to market that matter rather than 1st to patent. It would be a good idea to look up his YouTube videos for more information.

In your case, I'd do a provisional patent just before I started submitting it to companies for review. 

BTW, I too kinda have garden product of sorts, so I might be going through the same thing as you.

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swbrummitt's Avatar

To bring a little clarity to the situation you presented:

Firstly, the answer to your big question is 'no' someone cannot come behind you and get a 'utility patent' on a device that you have been selling! Because you have been selling it your device is automatically in the public domain one year from the date you first disclosed it. 'IF you don't file for a patent during that year.

On the other side of that coin is that without a patent you have NO legal recourse to stop ANYONE ELSE from making and selling your exact product.

"IF' you are speaking of a design patent, then some things change and you really need to talk to a patent Attorney. Design patents have their place and I am not in a position to speak to those circumstances in your case.

Generally, what companies like Coca Cola┬« do is register their trademarks, and the design patents that they hold on their bottles, and logos to protect them legally. They also defend those trademarks, and Design Patents with all their strength and monetary power against ANY infringements real or perceived! But that doesn't sound like the road you are attempting to travel anyway.

Robert Harker
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larrybgood's Avatar

From what I understand, if someone patents your product within 1 year of your bringing it into the marketplace/making it public, then they can sue you for royalties because since 2013 the patent process is no longer "first to market" but rather first to file/apply".  It doesn't matter if you can prove you were the first to invent it.

But if what I wrote above is true, they first have to get the patent filed and granted within 1 year of it's public disclosure by you.  Therefore, it is unlikely this would happen.

However, since you didn't patent it, someone else can make it and sell it and you would have no recourse.  In this case, it would be wise to trademark the brand name you sell the product under so that you will have recourse if they try to infringe on your trademarked brand at the very least.

So, for instance, if your brand name for the product is Goo-Goo, maybe a Chinese manufacturer will copy it and use the name Goo-goo in the titles on Amazon to confuse people and to capitalize on your brand (assuming it has mass exposure at that point).  You can get Amazon to take down their listing once you prove to them you are the TM owner.  Same with Ebay.

Another instance is if they copy your product and then try to use a similar name like Gaa-Gaa or Go-Go or G00-G00.  You may have recourse on the basis of brand dilution and confusion and whatnot.

But always remember that recourse and protection is only valuable if you have to money to hire good lawyers.  Same goes for a patent.  It's not illegal to steal a IP, it's jsut unethical.  The only thing you can do is sue the infringing party to try to get recourse.  That often takes more money than small inventors usually have.

Dawn Scheurle
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