Provisional patent deadline

[matzoid]

What is the name of your state?What is the name of your state? IL

I sent in a provisional patent, but had some family issues come up and missed the one year deadline to submit my full application.

Is there any way I can still apply for a patent? I have made one small improvement since the provisional app. Does that count for anything?

 

[divgradcurl]

What is the name of your state?What is the name of your state? IL

I sent in a provisional patent, but had some family issues come up and missed the one year deadline to submit my full application.

Is there any way I can still apply for a patent? I have made one small improvement since the provisional app. Does that count for anything?

You can still apply for a patent, either by filing a provisional or nonprovisional application, as long as your invention is still otherwise patentable (i.e., hasn't been publically disclosed more than a year ago, hasn't been patented or publically disclosed by anyone else, etc.). You will not be able to claim priority from the original provisional application, as it has gone abandoned, so your new priority date will be whenever you file your new application.

Once a provisional expires, its as if it never happened.

Finally, even if the provisional was still in force, since you would be adding new material to your nonprovisional application, only the material that existed in the provisional app would be entitled to the priority date of the provisional app. But this is irrelevant in your case, since you will be getting a whole new priority date when you file the new application.

 

[matzoid]

You can still apply for a patent, either by filing a provisional or nonprovisional application, as long as your invention is still otherwise patentable (i.e., hasn't been publically disclosed more than a year ago, hasn't been patented or publically disclosed by anyone else, etc.). You will not be able to claim priority from the original provisional application, as it has gone abandoned, so your new priority date will be whenever you file your new application.

Once a provisional expires, its as if it never happened.

Finally, even if the provisional was still in force, since you would be adding new material to your nonprovisional application, only the material that existed in the provisional app would be entitled to the priority date of the provisional app. But this is irrelevant in your case, since you will be getting a whole new priority date when you file the new application.

Finally getting back to this. You can see how I could miss a 1 year deadline!

My problem is that I have been selling it while I was trying to prepare the final patent app. Is there any way I can still apply for a patent? No one else has been selling anything similar, as far as I know.

I am also considering (probably foolishly) of creating my own patent application using Patent Pro software. I doubt that I would ever make back the money I would need to pay to have it done.

The one thing I don't understand is why can I not apply for a patent just because I have publically disclosed it? If no one else applies for a patent, why shouldn't I be able to beat them to it?

 

[auxbs]

The one thing I don't understand is why can I not apply for a patent just because I have publically disclosed it? If no one else applies for a patent, why shouldn't I be able to beat them to it?

The original premise of the patent system was to provide an incentive for inventors to disclose their ideas to the public, so that good ideas don't just sit on the shelf in someone's basement, never to see the light of day. If you are already selling the product, the public already has your idea and therefore, there is no incentive for the public to grant you a patent on it any more.

That's the theory at least... Really it's just the way that the law is currently written:

"35 U.S.C. 102 Conditions for patentability; novelty and loss of right to patent.

"A person shall be entitled to a patent unless -
...
"(b) the invention was patented or described in a printed publication in this or a foreign country or in public use or on sale in this country, more than one year prior to the date of the application for patent in the United States"

 

[divgradcurl]

Finally getting back to this. You can see how I could miss a 1 year deadline!

My problem is that I have been selling it while I was trying to prepare the final patent app. Is there any way I can still apply for a patent? No one else has been selling anything similar, as far as I know.

I am also considering (probably foolishly) of creating my own patent application using Patent Pro software. I doubt that I would ever make back the money I would need to pay to have it done.

The one thing I don't understand is why can I not apply for a patent just because I have publically disclosed it? If no one else applies for a patent, why shouldn't I be able to beat them to it?

If it's been more than a year since you've started selling the product, then auxbs is correct -- it's too late now to apply.