QUESTION

If I produce a herbal formula and see if it sells can I later patent the formula later?

Asked on Jan 13th, 2013 on Patents - Massachusetts
More details to this question:
If I produce a herbal formula (and sell), can I patent the formula later. Changes could be made in the formula at the time of patenting.
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5 ANSWERS

Licensing Attorney serving Portland, OR at Mark S. Hubert PC
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you have 12 months to file a patent in the US after you disclose it the public or offer it for sale.
Answered on Jan 15th, 2013 at 10:39 AM

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Intellectual Property Attorney serving South Jordan, UT at Pearson Butler
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You have one year in the United States to file a patent application on something that you sell, counting from the first sale or public disclosure, before you lost the chance to try and patent it. Outside the United States you do not have any time at all and must file the application before the first sale or public disclosure otherwise you immediately lose the chance to try and patent it.
Answered on Jan 15th, 2013 at 10:39 AM

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Patent Prosecution Attorney serving Troy, MI at Young Basile Hanlon & MacFarlane P.C.
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According to the newly adopted Smith-Leahy patent reform act, in order to patent a new formulation, public disclosure actions taken prior to application filing can make it impossible to obtain a valid US patent on the formulation. These actions will be relevant in determining patent eligibility for any future modified formulations. In order to obtain patent protection, an inventor/entrepreneur should consider filing prior to any sale or disclosure activities. A provisional application may be worth considering. Naturally, there are unique particulars surrounding each situation. You should discuss these with your patent attorney.
Answered on Jan 15th, 2013 at 10:38 AM

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Acquisitions Attorney serving Lincoln, NE at Jayne L. Sebby
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You have one year from the date the product is made available to the public (even a very small section of the general public) to file for a patent.
Answered on Jan 15th, 2013 at 10:38 AM

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Appellate Litigation Attorney serving Boston, MA at Banner & Witcoff, Ltd.
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Maybe yes. To be patentable, your herbal formula must be (1) totally new (never made before); (2) useful (do something) and (3) not be an "obvious" formulation based on what was done before in this area. You can sell or otherwise disclose and the within the one year "grace period" - still file a US Patent Application on the formula or modified versions thereof. If you miss the grace period - you cannot patent your formula.
Answered on Jan 14th, 2013 at 8:39 PM

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