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Can someone create a product that already exist and patent it if the original product has no patent?
Anonymous5 views4 answers
I created a stencil that has very unique designs, there is no other stencil with those designs on the market. I have already started selling them and people love them. However, I do not have a patent for the designs and use/function of the stencils. I have heard people say if a product is already on the market, legally no one can copy it and sell or try to patent their counterfeit as long as the original product's owner can prove that their products were on the market first. I personally don't believe that as it means there is no purpose for patents. But, with the patent fees being expensive, I would like to know what my options are. Also, a friend said I could not patent the stencil designs because I use plastic that is already patented by its manufacturer.
I appreciate your advice.
This sounds like you are confused between patents and trademarks. No one can use a trademark legally if someone already had the same trademark on the market for the same goods. No one can legally reproduce a work of art protected by copyright. Copyrights and trademarks are automatic and the USA. Patents are not. You must apply for a patent and pass an examination of the claims of that patent application in order to obtain a patent. It is not enough just to introduce the product first into the market to get a patent. In fact, if you introduce the product into the market before filing for a patent you have made a major mistake and will likely lose your patent rights unless you see a patent attorney promptly.
You need to stop listening to advice from friends and get advice from a patent attorney so you get decent advice. Likely what you want to be considering is a design patent and a trademark with a remote possibility of a utility patent. Copyright will most likely not be available for the design of a functional item like a stencil.
You have two options available: (1) a design patent on the ornamental appearance of each stencil and (2) a copyright on each resulting design. Speak with your own patent attorney licensed to practice in your state about these options and about setting up and managing a company from which you can do business. Good luck.
If the product (or a substantially similar product) exists on the market, it constitutes prior art to your stencil design products and probably prevent you from obtaining a patent on grounds of either lack of novelty ("anticipation") or "obviousness". However, if your stencil designs are unique and not substantially similar to existing designs in the market, you may be able to obtain protection through either a design patent or copyright. Without knowing more details, I cannot advise as to the best option for you. It is possible that copyright protection won't work because the utilitarian aspects of your stencil designs cannot be separated from the ornamental designs, but without examining your stencil designs I can't draw a conclusion on this.
Most importantly, before moving forward, you need to retain legal counsel to conduct a clearance analysis---you need to find out if someone else has a patent or other IP protection that would prevent you from making, using and selling your stencil designs without a license. There may be patents covering the "designs and use/functions of the stencils", and you need to find out whether this is so. Only by retaining qualified IP counsel to perform a clearance analysis will you know the answer. You also need to retain counsel to ascertain whether you can file for patent or copyright protection---in short, hire a lawyer if you want to sell these products.
