I've been selling my product for over 10 years. Is there a way to protect my invention?

A patent has to be applied for within one year of "invention," so you are well past that. However, depending on several factors, you may be entitled to calling the process of producing the product a trade secret. Is the process secret? Is it not obvious to someone who has skill in your industry how it is made? If you can answer yes to these questions, you might have a trade secret that is protectable. You need a free consultation with a lawyer who knows intellectual property to be sure. However, if you have a product that you are selling, you probably have a trademark that has value -- even if you have not registered the mark with the US Patent & Trademark Office or the State of California. Again, check with a lawyer who knows intellectual property -- you may well have a lot more assets than you think, and you don't want to give them away for less than they are worth.

A Patent, for invention property, is very similar to a Deed for real property. The Patent and the Deed represent the ownership interests in the underlying property. Without a Patent the Asker, unless the Askor/inventor has some trade secret, will see the large company take over the market. The Asker should see Intellectual Property counsel for advice re: options.

Because you did not apply for a patent within one year of first offering your product for sale, you will not be able to get a patent now. That does not mean that your business lacks intellectual property or would be unattractive to a potential buyer. You potentially have valuable know-how, trade secrets, trademarks, copyrights, supply channels, sales channels, customer lists, and other intellectual property that would be valuable to a potential buyer. An intellectual property attorney can help you understand your assets and help you negotiate a favorable deal with the potential buyer.

There are several ways to protect yourself -- trade secrets and also know how. Licensing know-how is equivalent in many ways to patent protection. Whatever you do, ensure that you have a CA IP attorney draft or review any agreements that you intend to sign with the "large company." There are many provisions that you will want to protect yourself that only someone who does a great deal of licensing will know. Good luck and congratulations on your forthcoming deal.

Trademarks are likely the most valuable way to protect value of an unpatented yet very successful product or service. Trade secrets are another way, as there is almost always valuable knowhow. Copyrights on various materials such as user guides, ads, manuals, and videos might add value to license. Have an experienced licensing professional to assist you in negotiations. Having negotiated many such licenses, I can assure you that you have much more too license than you might think so hiring a professional will generally more than pay for itself.

My colleagues offered excellent insights. You really need to work out a strategy with your own lawyer at this point to make the deal as attractive as it can be. As noted, patent protection is no longer a possibility, or at least not as the invention exists in its current public form. It may be necessary to have protective agreement, such NNN agreements created to ensure trade secret treatment. There may be great value in the trademark (your specific brand name) as well as trade dress aspects. Everything needs to be explored. I suggest that you consult with a lawyer in private and discuss your objectives in more detail. You can start by calling around to several for a free phone consultation, get some insights then pick the best fit to work with. Best regards, Frank Natoli-Lapin, LLC