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Patent Filing and Prosecution
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   How soon after filing can a product be sold?
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   Author  Topic: How soon after filing can a product be sold?  (Read 1355 times)
JodiB
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How soon after filing can a product be sold?
« on: Aug 22nd, 2006, 11:57am »
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Once a provisional or a patent application is filed, how soon can a product start to be sold?  My understanding is it can start to be sold up to one year before the filing (older than 1 year means you've lost filing rights anyways).  
 
Also, is there any difference whether it is a provisional or patent application?
 
thanks.
 
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JimIvey
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Re: How soon after filing can a product be sold?
« Reply #1 on: Aug 22nd, 2006, 1:51pm »
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Neither a patent nor a patent application gives you the right to make, use or sell (or import) anything.  A patent gives you the right to exclude others from making, using and selling (and importing) things.
 
So, to enable selling of a product, your own patent application is completely immaterial.  It's whether you infringe other patents that's more material.
 
However, perhaps you mean to ask when you can start selling your product without jeopardizing your own patent process.  
 
For rights in the US, your non-provisional (real) patent application must be filed within one year of the date of first offer to sell your product (or first public use or public disclosure).  If your provisional application meets all the legal requirements of a real application, you can file your provisional application within that year and follow up with a real application within another year.
 
For rights outside the US, your non-provisional (real) patent application must be filed before your first sale (or first public use or public disclosure).  If your provisional application meets all the legal requirements of a real application, you can file your provisional application within that time frame and follow up with a real application within a year.
 
Note that, if your provisional does not meet all the legal requirements of a real application (except for including at least one claim), it's of no use in either scenario.
 
Regards.
 
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James D. Ivey
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Jose
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Re: How soon after filing can a product be sold?
« Reply #2 on: Aug 23rd, 2006, 12:47am »
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So, by filing a non-provisional application in the US, I could sell my product and still not jeopardize my international rights for a patent? What about countries that don't allow you to file if you've sold your product at all? How long after filing a non-provisional appl. do I have to file with the PCT for international rights? I thank you for your time in answer my questions.
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Bill Richards
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Re: How soon after filing can a product be sold?
« Reply #3 on: Aug 23rd, 2006, 7:42am »
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If you have filed a PPA, and the PPA is sufficiently thorough (see Jim's cautions about PPAs), you have one year to file a non-provisional in the US and to file foreign (e.g., PCT) and still claim priority.  If you do not file a PPA, but file a non-provisional, you have one year to file foreign.  Once you file in the US, you are free to sell your product (see Jim's cautions about infringing), but you must perfect a foreign filing within the one-year window.
See, the filing, provisional or otherwise, puts a stake in the ground and frees you to do things that would otherwise jeopardize your application.  As long as you can refer back to that stake (e.g., claiming priority), you'll be OK.  But, you still must meet the one-year window for foreign filings.
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William B. Richards, P.E.
The Richards Law Firm
Patents, Trademarks, and Copyrights
614/939-1488
Miguel
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Re: How soon after filing can a product be sold?
« Reply #4 on: Aug 23rd, 2006, 10:26am »
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I first filled a provisional and then filed a non-provisional application a few months after. I still have not received the first non-final rejection or anything to let me see how the PTO will respond to my patent appl. I wanted to at least receive a non-final rejection to get a feel of what way the PTO is leaning towards before spending more money on filling with the PCT. What do you suggest? My year since the provisional appl. come up in October of this year. Thanks.
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