No patents: What are your options against product copies?

It’s understandable. You come up with a new product idea, but feel unsure about whether it will sell. So you invest in an initial production and see if it sells. To your surprise, the product does well. Perhaps you’re selling on Amazon or directly to consumers. The only problem is that you have no patents, and your product has already been shown to the public for awhile. What are your options?

When is it too late to patent your hot selling product?

If you’ve already been selling your innovative product, you might still have time to file US patents pursuant to the 1-year grace period. When was the first time you showed your concept to the public? Was it the date of your first sale? You have one year from this earliest date of public disclosure to file US patent applications on your original product.

Keep in mind, however, that foreign patents will not be an option in most cases due to a rule known as the absolute novelty bar.

How can you patent an old product?

What if more than one year has passed since your earliest public disclosure date? One potential solution is to file for a modified product with improvements that were not publicly shown over a year ago.

For example, what if you were to create a new version of your product with some unique features? Since your original product may qualify as prior art against a patent application for your new and improved product, adding non-obvious features will help make your new version more patentable.

Suppose the functions are the same, but the new version has a different appearance. Use design patents to protect this new appearance.

Would copyright protection be available for your original product?

Copyright protection might be an option. Unlike patent deadlines, there is no rule preventing product creators from filing copyright applications even if sales have been occurring for a long time. That is not to say that copyrights will solve everything.

For products with functional features, there is a significant probability that your copyright application may get rejected on the grounds that you’re seeking to copyright functionality.

No patents, No problem?

Timing is everything when it comes to patenting. If you are struggling with the fact that your successful product has no patents, act sooner than later. Perhaps you still have time to take action before it’s too late. Reach out to US patent attorney Vic Lin by email at vlin@icaplaw.com or call (949) 223-9623 to see how we can help you stop copycats.

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Vic Lin

Startup Patent Attorney, Cofounder at Innovation Capital Law Group
We align ourselves with Davids fighting Goliaths. Our registered patent attorneys help innovators get IP that drives funding, growth and sales. Email or call us so we can get to work on your IP: (949) 223-9623 | vlin@icaplaw.com