Filed PPA and need advice

[farmerjoe]

What is the name of your state? Texas

I filed a PPA this month and have since learned that someone else had previously filed a PPA on a very similar product. I can not say for sure if the details of the other PPA will match mine, as I haven't actually seen it myself. But I do feel they will be similar, as I know there can only be so many ways to make what I have invented. I was able to verify that the PPA was indead filed. This is actually a second PPA on the product for this person. They apparently filed one over a year ago and then when/before the 12 months was up, filed another one to get another 12 months of time before the had to go forward with the patent. I did not know this other PPA existed until I was already well into my own PPA, and now not sure what to do. I have already put this product into on the market and actually sold several. First sale dating back to about 11 months ago.

I believe this other person is now going forward to file a patent application. As understand it, they will loose the date of the first PPA and be going on the date of thier second PPA application date. Is this correct? Any avenues I can take to protect my idea and already growing business are greatly appreciated.

 

[divgradcurl]

As understand it, they will loose the date of the first PPA and be going on the date of thier second PPA application date. Is this correct?

It sounds as if their first provisional went abandoned, so they filed another provisional. In that case, yes, they would only be entitled to the filing date of the second provisional. Once a provisional goes abandoned, it is of no interest or value whatsoever (unless, of course, a nonprovisional application claiming priority back to the provisional was filed prior to abandonment -- in that case the filing date of the provisional does matter).

You best bet is to file a nonprovisional as soon as you are able claiming priority back to the provisional. If there is another application out there, and you are realy covering the same invention, then you may be subject to an interference, and then eacbh side will need to "prove up" when they actually invented the invention, because the U.S. is a "first to invent" system. Their previous provisional that went abandoned MIGHT be useful against them, as the "first to invent" gets the patent, unless they "abandoned, concealed for failed to dilligently reduce to practice" their invention, and depending on the particular facts of your situation, their previous abandoned application may be evidence against them.

File you nonprovisional ASAP. Also, make sure you round up any and all documentation, drawings, letters, emails, anything that can help you prove when you actually invented your invention. That's about all you can do now.