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Can I patent my home made soap after I sold a few to friends and established a website?

Atlanta, GA |

I was told I cannot patent something after public disclosure. Is this a form of public disclosure e.g website, selling to friends and social network sites? I think I ruined my chances of getting
a patent in my ignorance. Do I have any options and can I still patent my unique soap? Did I destroy my opportunities of patenting my soap product by creating a website, and social media sites like facebook?

Attorney Answers 5

  1. Best answer

    In the U.S., you have a one year grace period after the first public disclosure or sale to file for a patent. Disclosure on a web-site is sufficient cause the clock to start running.

    In truth, however, unless there is something extraordinarily unique about your soap, I sincerely doubt that you could get a patent covering it. Even if there is something new concerning the recipe that you developed, chances are that the recipe of ingredients that you use would be considered obvious. Before applying for a patent, you would need to engage counsel to conduct a clearance analysis, and chances are that your counsel would conclude that getting a patent is a hopeless endeavor.

    Furthermore, patents are usually not relied upon by companies in the soap/cosmetics industries for IP production. Most companies rely primarily on trademark law to protect their soap/cosmetic products. Your branding strategy involving use of trademarks (words and logos) will be more critical to your success than any patent you could conceivably obtain.

    Indeed, I often tell clients that it costs $3.5 million or more to bring a patent case against infringers. Unless you have the resources to pursue such litigation, getting a patent is probably a wasteful exercise for you. You next step should be to retain IP counsel to advise you concerning how to develop an appropriate branding strategy.

  2. The US allows a one year grace period after a public disclosure to file a patent application. Public disclosures include printed publications such as information on your website as well as a sale or an offer to sell your product. Either the filing of a US provisional or a regular US utility patent application with in one year after a public disclosure gives you allows your patent application to proceed. Most foreign countries do not allow any public disclosures before filing a patent application. Contact a patent attorney on this site to help you evaluate your options.

  3. Tell that foreigner to quit talking and quit listening. Here in the USA we have a one year grace period. Instead see a registered patent attorney. That's to whom it makes sense to listen.

    I am not your lawyer and you are not my client. Free advice here is without recourse and any reliance thereupon is at your sole risk. This is done without compensation as a free public service. I am licensed in IL, MO, TX and I am a Reg. Pat. Atty. so advice in any other jurisdiction is strictly general advice and should be confirmed with an attorney licensed in that jurisdiction.

  4. If your disclosure was less than a year ago, you may still file for a US patent. You most probably lost foreign patent rights.

    Disclaimer: This answer does not constitute legal advice and does not create an attorney-client relationship.

  5. Short Answer: If you are within a year of your first disclosure date, then file ASAP.

    You gave a 1 year grace period in the U.S., However, if someone else independently arrives at your invention and files before you do, then under the new AIA, they win. So you should file as soon as possible. However, you international rights are mostly gone. Good luck.