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[ValueProducts]

I have developed an invention but have recently located an existing patent that is now 17 years old; it does not appear the product was ever produced/licensed/
marketed (US).  The patent is broad enough to (probably) include my version, though is (opinion) far more marketable and is not hampered by older technology/materials (metals vs. plastics).

In any case: does this mean my idea is dead in the water?  I can find nothing patented AFTER this patent, nor have extensive searches of product lines demonstrated that anything like this is currently being marketed.  Yes, I realize this may mean it is a dead-end idea. My understanding is patents can "die" if not maintained somehow?  Yes/No?

I cannot see patenting my invention, only licensing it.

Thanks,
Mike  

[Isaac]

A patent issued 17 years ago is likely close to expiring.

When it comes to licensing an invention, the fact that the invention
cannot be protected by a patent probably does affect its marketability.
You could not offer a potential licensee any exclusivity.

That said your description does not rule out the possibility that
your invention is patentably distinct over that issued patent.

[JimIvey]

I cannot see patenting my invention, only licensing it.

I see Mr. Clark already addressed this point, but I'd like to elaborate a little.

First, I'm assuming you mean that you want to collect money for allowing others to use your idea, not that you hope to get permission to use the technology of the patent you found.  In short, I assume you want to be the licensor, not the licensee.

Second, (assuming I'm right) to get money from others, you would have to have some right to exclude them from using your idea.  As a patent attorney, I naturally lean toward patents as one way to obtain the right to exclude others.  So, your statement appears to be a non sequitur -- akin to saying, "I don't want to the right to exclude others from using my technology; I just want to selectively grant permission to use it."

I suppose you could mean that you want to rely on trade secret protection.  That's possible.

But you should understand the import of Mr. Clark's statement: the value of your permission to use your idea is derived from your power to exclude others from using your idea.  To build that value, you have to think about how you might build that power to exclude.

I hope that's helpful.

[ValueProducts]

A patent issued 17 years ago is likely close to expiring.

When it comes to licensing an invention, the fact that the invention
cannot be protected by a patent probably does affect its marketability.
You could not offer a potential licensee any exclusivity.

That said your description does not rule out the possibility that
your invention is patentably distinct over that issued patent.

I agree that patent protection for this type of "invention" (I think of it more as a new product) does not affect marketability.  My guess (only that) as to why the similar device I found a patent for has never shown up at WalMart is that the technology 20 years ago was too cumbersome to make it worthwhile.

That's changed.  But reading the patent, it is sufficiently broad (some attorney did his job!) to INCLUDE a pretty fair description of what I have (by the by: as luck would have it I actually first concieved of this thing about the same time this patent was issued--not that that is worth anything on the bottom line), so the distinction, while present mostly by dint of technology, does not seem to me to be significant.

Some questions remaining:

1. what's the life of an original, non-renewed patent? I have information about it being 3 years, 5 years and "forever."  Which is accurate?  

2. What does it matter?  I have no intentions of patenting this thing, and will rely instead upon first to market for my $$.  I think it may be a product a manufacturer/marketer of such items might find attractive.  If they do, I will let them worry about patenting it, and or the older patent. And yes, I know this seems to rub patent attorneys and other experts the wrong way, but there it is.

Best,
Mike