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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?

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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.

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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.

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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?

  • No. A patent is for things that are novel (new) and invented by the inventor listed in the application. The item is not new and it wasn't invented by the OP. – George White May 27 '17 at 18:55
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    Quite simply, this answer is wrong. – Eric Shain Jul 13 '17 at 15:21
  • A "patent" isn't a thing you get like a claim to an unused gold mine -- that is, if no one is working a "gold mine", the government might let you, but that's not what patents are. A patent is a recognition that you came up with some new, non-obvious and useful "thing", and in exchange for teaching others how to do that "thing", you get a monopoly on the "thing". – Julie in Austin Nov 21 '18 at 18:57

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