I am looking to launch a product which has already existed in Australia but failed to make any money at the time. The product was created around 3 years ago but the company seems to have ceased trading now. There is no patent or patent-pending on the product.
It's a utility patent. What would be classed as published material. They have a Facebook page with the product, but no updates on the page since 2013.
Can I still apply for a patent on the idea?
When filing an application, you must complete a declaration, which states:
. . . I believe that I am the original inventor or an original joint inventor of a claimed invention in the application. I hereby acknowledge that any willful false statement made in this declaration is punishable under 18 U.S.C. 1001 by fine or imprisonment of not more than five (5) years, or both. . .
Also, from 37 C.F.R. 1.56(a):
Each individual associated with the filing and prosecution of a patent application has a duty of candor and good faith in dealing with the Office, which includes a duty to disclose to the Office all information known to that individual to be material to patentability as defined in this section.
So no, you cannot apply for a patent for something invented by someone else or publicly available more than a year prior to your application.
I'm going to look at this from a completely different perspective, which is why did this product fail, and what have you modified ("invented" ...) which ensures it won't be a failure the second time around.
First things first - if you have no expectation that you'll significantly improve the product, you have no realistic reason to believe it will be a success this time around. Which pretty much means you need to figure out how to make it work.
The good news is that a novel and non-obvious improvement to a patentable "thing" is itself patentable. Assuming you are the inventor of this improvement, you can file for a patent.
You will need to disclose the original "thing" and your independent claim(s) will need to disclose your improvement.
All that said, if you've not improved, in a novel and non-obvious fashion, the original "thing" you have no invention and nothing to patent.
I think you can. Because no one has patented it before and there is no patent-pending on the product. So I believe the answer is yes. I recommend you get some advice from the patent institution. By the way, it's days after you first made this question, have you made the decision?
