If I produce a herbal formula and see if it sells can I later patent the formula later? 9 Answers as of January 15, 2013

If I produce a herbal formula (and sell), can I patent the formula later. Changes could be made in the formula at the time of patenting.

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Barton Barton & Plotkin
Barton Barton & Plotkin | Maurice Ross
Probably not. If you start selling your product to the public, you have only one year from the date of the first offer or sale to file your patent application. Otherwise you lose your patent rights. You should file your patent application before you start selling your product. If you make changes or improvements, you can file a subsequent improvement patent. But it is never a good idea to sell a product before you have a patent application on file.
Answer Applies to: New York
Replied: 1/15/2013
Law Office of Kirk Buhler
Law Office of Kirk Buhler | Kirk A Buhler
The patent office currently operates on a "first to file" basis. If someone sees your product and files before you, you might not be able to get your patent. You should also know that a patent must be filled within one year of the first public disclosure or sale. If you file after the one year your patent application could be rejected based upon your own sale.
Answer Applies to: California
Replied: 1/15/2013
Mark S. Hubert PC
Mark S. Hubert PC | Mark Hubert
you have 12 months to file a patent in the US after you disclose it the public or offer it for sale.
Answer Applies to: Oregon
Replied: 1/15/2013
Webb IP Law Group
Webb IP Law Group | Jason P Webb
You have one year in the United States to file a patent application on something that you sell, counting from the first sale or public disclosure, before you lost the chance to try and patent it. Outside the United States you do not have any time at all and must file the application before the first sale or public disclosure otherwise you immediately lose the chance to try and patent it.
Answer Applies to: Utah
Replied: 1/15/2013
Tran & Associates | Bao Tran
No, you must file a patent first. The least expensive way is to do a provisional patent application. I recommend using software called ProvisionalBuilder, available at powerpatent.com
Answer Applies to: California
Replied: 1/15/2013
    Young Basile
    Young Basile | Denise Glassmeyer
    According to the newly adopted Smith-Leahy patent reform act, in order to patent a new formulation, public disclosure actions taken prior to application filing can make it impossible to obtain a valid US patent on the formulation. These actions will be relevant in determining patent eligibility for any future modified formulations. In order to obtain patent protection, an inventor/entrepreneur should consider filing prior to any sale or disclosure activities. A provisional application may be worth considering. Naturally, there are unique particulars surrounding each situation. You should discuss these with your patent attorney.
    Answer Applies to: Michigan
    Replied: 1/15/2013
    Sebby Law Office
    Sebby Law Office | Jayne Sebby
    You have one year from the date the product is made available to the public (even a very small section of the general public) to file for a patent.
    Answer Applies to: Nebraska
    Replied: 1/15/2013
    Banner & Witcoff, Ltd. | Ernie Linek
    Maybe yes. To be patentable, your herbal formula must be (1) totally new (never made before); (2) useful (do something) and (3) not be an "obvious" formulation based on what was done before in this area. You can sell or otherwise disclose and the within the one year "grace period" - still file a US Patent Application on the formula or modified versions thereof. If you miss the grace period - you cannot patent your formula.
    Answer Applies to: Massachusetts
    Replied: 1/14/2013
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