Can I apply for a patent on this product? 7 Answers as of August 13, 2011

I purchased a personal care product online that is not covered under a patent. I was so impressed with it I figured out how to develop the product myself. Can I apply for a patent on this product?

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Intellectual Property Center, LLC
Intellectual Property Center, LLC | Ak Shaf
To obtain a patent, you must be the inventor or a new and non-obvious invention. If someone else invented the invention, there is nothing to patent. however, if you made an improvement on the others invention, you could obtain a patent on the improvement. Feel free to contact us if you have any additional questions. Good Luck
Answer Applies to: Kansas
Replied: 8/13/2011
DANIEL NESBITT
DANIEL NESBITT | Hasse & Nesbitt
If it is the identical product, you cannot patent it. First, it is not "new" to you. Second, you did not invent it. If you have only made minor changes or have minor differences with the product, you still cannot patent it, because the changes are presumably obvious. If you have made significant, non-obvious changes, then perhaps what you have made or done is patentable.
Answer Applies to: Ohio
Replied: 8/9/2011
Law Office of Thomas Williamson
Law Office of Thomas Williamson | Thomas Williamson
First, how do you know that it is not covered by a patent? This is typically based on an extensive search of the patent records. Moreover, a patent application that could eventually issue as a patent could be in process and may not be available publicly. Second, only the inventor has rights to an invention and it is fraud for someone who is not an inventor to apply for a patent on something that they did not invent. However, you can make an improvement to an existing invention and potentially obtain a patent for your invention of the improvement.
Answer Applies to: Georgia
Replied: 8/9/2011
Mark S. Hubert PC
Mark S. Hubert PC | Mark Hubert
If the product you are making is structurally the same as a product that already existed then no. If you are making a chemical compound a new way then yes you may patent the way of making the compound - but not the existing compound.
Answer Applies to: Oregon
Replied: 8/9/2011
Edam Law PLLC
Edam Law PLLC | Edmar Mauricio Amaya
How do you know it is not patented? Did you do a professional search? Sometimes professional searches cannot find patent applications since they are secret for 18 months until publication. Taking something from someone is dangerous because you might infringe, and probably will get sued when the patent application matures. Unfortunately, you can not patent something you did not invent. If in fact it is not patented and you "figured it out" how to make it, you can sell it and even profit from it, as long as you do not use its trademark name. A quick lesson, in order for an invention to be patentable you need the following: 1. that the invention be novel. New. Not known or used in the USA 1 year before filing the U.S. application. 2. that no one has a patent on the invention anywhere in the world. 3. that no one has sold the invention, or offered to sell, more than 1 year before filing the U.S. application. 4. that the invention not to be obvious (a non trivial change) 5. that you are the inventor who conceives at least one claim in the patent Trade secrets: if the there is no patent, then there might be trade secrets. You are allowed (and in fact encouraged) by the law to do two things: First, if not patented, or covered by trade secret, to reverse-engineer, this means you can go to a chemical lab and find out the composition or "figure it out." Second, if the composition is in fact patented, you can design around it. Therefore, to be in the safe side, you can always improve on the product, find out how it works, make it better (a non trivial change), and then apply for your own patent. Become a competitor with a different or improved composition. I think your issue is going to be for the improvement to be inventive enough (non trivial) worthy of a patent.
Answer Applies to: Florida
Replied: 8/9/2011
    Michael M. Ahmadshahi
    Michael M. Ahmadshahi | Michael M. Ahmadshahi, Ph.D., Esq.
    You cannot file a patent application for a product that has been made in this United States for more than 12 months.
    Answer Applies to: California
    Replied: 8/9/2011
    Barton Barton & Plotkin
    Barton Barton & Plotkin | Maurice Ross
    Probably not. The product is already in the prior art. There is some possibility that you could patent a method for making the product. But chances are your method is obvious over prior art or contained in prior art. But stranger things have made millions. You need to retain ip counsel to advise you
    Answer Applies to: New York
    Replied: 8/9/2011
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