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Can you patent something illegal?

I need to patent something, can you help?

  • If I take something that already exists, but I make it better, can I patent it? Do I have to pay the creator something for improving on the idea? What if the creator is no longer alive? How long will the patent process take, and how much? ( I've heard 5 years ) For example: If I wanted to sell a "pet rock" can I sell it with out getting into legal problems. What if I call it a "pet stone" and chisel out a face? For those who do not know what a pet rock is, it was sold in the sixties. It was a real rock that came in a box, and you would name it. The guy made millions. What I want to come out with is something that is no longer on the market, but with my improvements, I think it will do really well today. Also, If you know the entire process of putting something out on the market, please can you map it out for me? Thank you!

  • Answer:

    your questions are all over place. Your best bet is to hire a business advisor, because at the heart of it, it seems building a business is what you want to do. Part of the business planning process will be to identify intellectual property issues and seek help navigating the options, keeping in mind the goal. Generally speaking, the standards for patentability are: 1 - no previous record anywhere of what you are suggesting (no "prior art") 2 - non obvious and non trivial Also, to manufacture and distribute the invention requires all the rights associated with the invention, which may mean licensing the rights for underlying inventions. If underlying patents have not expired, but the holder has died, then the estate will hold the rights. Similarly if a corp owned the patents but does not exist, there are sections of the law about where the rights go. One thing that does NOT happen is the patent is voided and available for anyone, except when time expires or the patent is ruled invalid. Since you can;t remember the name of the product, it may or may not be patented. A quick patent search online might or might not find it. If you search and don't find it, that does not mean it is not there, for lots of reasons. Also for lots of reasons, one of which is that if you see some related stuff, it can influence your own invention later in bad ways, patent-wise, I recommend NOT doing your own search. There are attorneys who specialize in that - hire them instead. Finally, it may be that the product you recall was not protected by patent, but by some other intellectual property regime, such as trademarks or trade secrets, or even a combination of any or all 3. How you deal with those situations is also what an experienced startup business advisor can assist you with.

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Check out http://www.patentengineers.com It's got information for first time inventors, and it also explains how patents work and how to apply for one.

Yagen P

probably not going to be much help, but if somebody holds a patent on something that you want to "improve" find out when the patent runs out and proceed from there.

LYON O

Huge numbers of "improvement" patents are filed and issued every year. You have a statutory "right" to obtain a patent on an improvement (assuming the invention qualifies as new and non-obvious). A patent does NOT, however, give you the right to make, use, or sell the improved invention. You would need to obtain a license for the underlying inventions, or determine that they have expired (5 to 18 years or so after issuance, depending upon whether properly maintained). Some still-valid patents can even be purchased for short money, if the owner no longer makes the product. The death of the original inventor has little bearing on whether the patent rights are still valid (and owned by his/her heirs or successors). Patent process can take several years and is not enforceable until it is issued (if ever). It is very easy, however, to obtain "patent pending", as a way to alert competitors that you think your invention is valuable. The "pet rock" scenario is more of a trademark discussion, which has very different rules from patents. A trademark exists (in the USA) from the moment it is first used in commerce in association with specific goods or services. It would be foolish (and illegal) to try to market a knock-off using a similar name that somebody already is using, unless you obtain a license from them (and anyone else with similar names), or can obtain a legal opinion that the original name was "abandoned".

bcnu

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