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As part of software product I needed a software utility (library) that I could not find so I built it from scratch. I think it is unique and has some value and for sure I want to protect it.

Since it is only a web product and this is on the server side it is protected in they can't get to it. If someone breaks into the server we have bigger problems than this utility as we host sensitive customer data. We are just treating it as a trade secret.

This product has been sold for over a year. It is only sold as a service - they don't license the software. We are working on a distribution version of the software and cannot stop them from breaking into code once they have it on CD. Even once they saw how the tables are laid out in the database they would have an idea of how it works.

So finally getting to the question. Do I have much hope of patenting this utility at this point? My thought was to just file for a provisional patent and see if the software sells. I guess I would need to get a full patent even if the distribution software does not sell to protect the web server version.

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As far as I know, this scenario is not well-settled law in the U.S.

Prior to the changes to patent law introduced by AIA, any patent would almost certainly have been invalid if secret commercial use of the invention by the patentee exceeded one year prior to the filing (or priority) date.

After AIA, things aren't so clear; see below:

http://patentlyo.com/patent/2012/10/did-the-aia-eliminate-secret-prior-art.html

Myself, I would go ahead and file a patent application, while making the Examiner aware of the prior secret commercial use, of course.

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