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Messages - Brad

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Patent Questions and Advice / Re: Can I patent? Easy one
« on: July 06, 2019, 10:29:25 AM »
In theory you are supposed to be able to get a patent on a new and non-obvious use of an existing product, in reality those type of patents are just about impossible to get approved.   Ideally you would have some evidence or logical reason why someone would not normally combine the two.

For example, if you were the first person to think of combining peanut butter and jelly to make a sandwich, that may be a great idea and you may be the first one to do it but the patent office will say these are both food items that people have put on sandwiches before so it would routine or odviouss to put them together so they will reject your patent. 

Now, if you had some data or evidence that peanut butter normally does not mix well with jelly and that it would be strange or illogical to put the two together you may have a better shot here.

Patent Questions and Advice / Re: Collapsible Straw
« on: June 22, 2019, 08:00:33 AM »
Trying to determine what specific rights a patent like FinalStraw has can be challenging and most patent attorneys will charge at least a few thousand dollars for this work called often called a "freedom to operate" opinion.

In general, you must look at the "claims" section of their patent to see what their patent actually covers.   For example, if their claims all say the stray must include 4 sub-units and Walmart sells one with just 2 sub units it may not fall under the claims of their patent and the patent owner cannot stop them.

(this is not legal advice and claim interpretation is one of the most difficult and serious parts of patent law so you will not get specific advice online for questions like this).

Patent Questions and Advice / Re: Patent applicant on the certificate
« on: June 22, 2019, 07:57:21 AM »
Likely it was too late to change the applicant to the company.   If you need to make changes to items like that right before publications there is a special publications tab within Private Pair where you can sometimes get them to make last minute changes prior to publication.

A provisional application is one type of "utility" patent application so I am not sure I understand your questions.  Read this post on the different type of applications:

If you are asking about starting with a provisional and then switching to a design you can file both but to be safe I would try to file them around the same time so perhaps file the provisional first and then try to file the design a few weeks later.   

Just make sure the focus of the provisional is on functional items not related to the ornamental design as that could also cause potential problems down the road.   

If I had a new software product in the business/finance space I would try all options to protect it:

1) Patent with a focus on any technical challenges the software solves (this is a long shot but may be worth it depending on the amount of investment going into the product)

2) Copyright to protect the code (stops people from copying your code directly)

3) Tradesecret on any process, formulas, etc. that can be kept secret (object code) and that are not included in the patent.

4) Trademark on the name/branding of the product.

Likely item #4 will be most valuable.   There are 100s of auction websites out there but eBay is a billion dollar company because of its brand recognition and user base, not because of their patents.

If your product looks different from the original patent and has a new "design" to it then yes you should be able to get your own new design patent approved.   

If it looks the same as the original it will likely be rejected as not being a new design. 

If you are not the person who first created or invented the drink than you are not allowed to apply for a patent.  Only the original inventor of the invention can apply for a patent.

I would consider looking into a Trademark to protect your branding and imaging.   A good trademark attorney is:

That is a really good question and as far as I know there have not been any cases to test this scenario.

If I had to guess you may be okay under the public use/disclosure rules but I may be worried about the "offer for sale" rules if it looks your offering of a beta product is an "offer for sale".   Basically even secret or limited offers for sale can count against you:

Sorry I cannot answer for certain and I dont really think anyone can answer this without doing a lot of legal research on the topic.   

Have you already paid the USPTO for the extra claims?   If so, I would keep them all together to see if you can get "lucky" and have the examiner review all of them in your first application.   If the examiner thinks there are multiple inventions he/she will give you a restriction requirement forcing you to pick one invention for examination.    You then have the option to file a divisional application anytime while the first application is still pending.

If you did not care about spending the extra money now, you could cancel your old claim set and file the divisional applications now but personally I would not do this as it seems like a waste of money if you already paid for the extra claims in the first application.

Thanks for the questions.  A few thoughts I have on this:

1) you can file your USA PPA as an "unregistered" filer without waiting for any approvals or snail mail:

2) I don't know enough about the Australian patent system to comment on going from an Austrialian PPA to a PCT.  I know you can go from a US PPA to a PCT but not sure if an Austrialian PPA will count (my guess is that it should but I would check with an AU attorney to confirm).

3) I don't think Australia has any restrictions on foreign filings without a foreign filing license (some countries require you to get permission before you file your patent overseas) but please check with an AU patent attorney to confirm.


Patent Questions and Advice / Re: PPA - How much detail is too much?
« on: April 24, 2019, 11:21:26 AM »
I usually tell people not to spend a lot of time on the claims and usually most non-patent people don't write the claims properly to begin with.  However, writing the claims in a PPA serves a valuable purpose though because it forces you to focus and cover the key aspects of your invention.   So I would suggest writing these out in at least bullet point format and you can include them in the Brief Summary of the Invention section but don't really need to file them as "claims" in the PPA or spend time trying to word them in "legal speak" to make them look like proper claims.

Patent Questions and Advice / Re: PPA - How much detail is too much?
« on: April 21, 2019, 09:13:10 AM »
Usually having too much details is better than leaving something out so it sounds like you are doing everything properly.

If I had to guess Google Patents is not able to properly calculate the expiration of patents outside of the US and even calculating a proper US expiration date can be challenging as some patents can have "patent term extension" added onto the end of their 20 year period.

One other website you may want to try is:

Other than that the safest bet would be to figure out which countries you were most interested in and hiring a patent attorney in each country to research this for you (note each country has their own patent rules around expirations which is why Google is not always a reliable source)

Patent Questions and Advice / Re: Expired Provisional Patent
« on: April 07, 2019, 08:06:53 PM »
Hi Ashraf,

You can only re-file your provisional patent application if your idea is either:
(1) Still secret, or
(2) Was made public or offered for sale less than 12 months ago.

If you can satisfy either items 1 or 2 from above you can likely re-file your provisional but there are some risks associated with this.  Here is my standard warning I send to people that want to re-file:

*WARNING - the risk of re-filing a provisional patent application again and again is that each time you start with a brand new filing date and you cannot link the applications together.  Most of the time this is okay, however, there are times when your competition may invent an identical or similar device and may be able to "jump ahead of you in line" at the patent office or possible block your patent from being allowed.  For example, if you filed your first provisional in March 2013 and it expired in March 2014 and your competition invented a similar device in April 2014 and started selling it online, then if we re-filed your new provisional application in June 2014, the the patent office could use your competition's April 2014 invention to block you from getting a patent because your filing date would be seen as June 2014 (i.e. after their invention).

One other risk is that if your idea was made public or offered for sale prior to us re-filing the provisional, you will probably lose the option to file in countries outside of the USA because they have more strict rules on "absolute novelty" when compared to the US Patent Office. 

We can sometimes file your provisional patent application "as is" without any review or input from us for a fixed fee of $250 + USPTO fees of $70-$140 for most people.   (note I am leaving on vacation through April 22, 2019 and will not be able to help you until I return).


If one part of your invention is not allowed you can still try to get the other part of your invention allowed, even if they are both listed in the same application.

In your non-provisional you would have some claims to the method and some claims on the device.   If the method claims are rejected and the device claims are allowed you would just cancel/remove the method claims and your patent would be approved on the device only.      This is fairly common.

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