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I have a utility patent in China for over 2 years and I recently decided to go ahead and patent my invention in North America. Problem, because there is an existing patent in China for this invention (which is mine) and has been granted over 2 years, it is now impossible to patent it anywhere else. I just don't want to believe that I'm screwed by my own patent! How can this be, it is plain unfair. So I'm asking here if anyone knows a workaround or anything that would enable me to protect this invention.

Thanks in advance!

  • @DonQuiKong <comment removed> If you have an answer, please post it below. Thanks. – Robert Cartaino Sep 16 '17 at 19:40
  • There is no workaround. Put "35 USC 102" into Google to read the law. – Riccati Sep 19 '17 at 0:36
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The only "work around" is to invent something new. By now you may have come up with a non-obvious improvement or optimization. A previously unknown method for producing or using your invention might also be patentable.

  • Thank you George, I've came up with some improvement and I'm hoping it will be different enough from my first patent. – Julian Livin' in China Sep 20 '17 at 6:00
  • As a general rule, your improvement would need to be "new and non-obvious", to become "patentably distinct" over your earlier patent. "New and non-obvious" is a legal term of art, referring to specific sets of rules employed during examination of your application. – Upnorth Sep 21 '17 at 18:13
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It is worth noting that in some countries, including Ethiopia, Jamaica, Nepal, it is possible to receive grant of a patent based on granted patent rights overseas. However, as you have received a petty patent (utility model) you most likely would not be able take advantage of these provisions, although if such territories were of any commercial relevance, it would be worth consulting with a local attorney to be sure.

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