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I invented a similar idea years ago but never sold it or disclosed it publicly. ALthough I thought about patenting it in 2013 and could not find any anything similar at the time, I just didn't have the money and had no idea about provisional patents then.

So now, I go to research again and find that there was a similar idea, and that it was submitted under a provisional in April 2013, AFTER the new rules went into effect. I suspect that when I went to look in 2013, since it was a PPA, it was not yet published so I couldn't find it. However it was publishe and viewable 18 months after filing. ALL throughout this time, this inventor was selling her item.

This inventor actually began making and publicly selling her item at least as early as 2011. From what I can find, it looks like inventor may have filed a provisional in both 2012 (although there is no published record of a different PPA) and then in March 2013, after the new rules came into effect. But I don't think she ever went forward with a full patent.

However, now it is 4.5 years since filing the PPA and she still is using "patent pending" on her website and literature. Is this legal?

And if she has abandoned her right to patent, can I patent my similar idea?

Would an inventor with abandoned PPA 4 yrs out have any legal right against me for selling, marketing, licensing or patenting a similar idea?

Now...I cant tell for sure if this is an expired PP or a non provisional patent application number?

I need to know because if she actually has a patent filed, and it is just in pending status, I have to go a different route. I believe I can file an improvement patent, since my idea is a different design, although same function,

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Before we answer the question, you should be aware that the cited application US20140312193A1 is a full patent application and not a provisional application. Patent applications don't expire. Rather they are either granted or rejected. The definitive site to determine the status of a US patent application is the US Public Pair. For this case, get past the CAPTCHA and select document number and enter "20140312193". There you can find the status as "Abandoned -- Failure to Respond to an Office Action" with a status date of 8-07-2017. If you click on the "Transaction History" tab you can see there was a final rejection (which generally aren't final) and some back and forth until the examiner declared failure to respond. It has only been a couple of months since this status declaration so I'm guessing there is still some possibility that the application could be resurrected, but I'm not a lawyer so I can't say for sure.

she still is using "patent pending" on her website and literature. Is this legal?

I don't think so, but as I said, it has only been a couple of months since the application has been declared abandoned and there still may be potential for reinstating it. I'd welcome a clarification from one of the lawyers who answer here.

if she has abandoned her right to patent, can I patent my similar idea?

It really depends on how your idea differs from that described in the application and other prior art. The application, even though abandoned is considered prior art to you. You can't patent an existing idea. Also note the examiner rejected the application so he/she found enough prior art that it wasn't considered patentable. You can read the communications in the US Public Pair to see what other prior art was cited.

Would an inventor with abandoned PPA 4 yrs out have any legal right against me for selling, marketing, licensing or patenting a similar idea?

Again, this was not a provisional application. As of now, the assignee of US20140312193A1 has no patent protection. There is perhaps a non-zero chance of reactivating the application so before you go off selling or marketing the product, you may want to consult with your lawyer. I've already responded about you ability to pursue a patent, and unless you get a patent you don't have much basis for licensing.

Now...I cant tell for sure if this is an expired PP or a non provisional patent application number?

I'd say if you found it on patents.google.com, it is a full fledged patent application and not a provisional. Full fledged US application numbers start with the year, in this case "2014". Also, you can see the reference to the provisional application in the text of the application: "This application claims the benefit of U.S. Provisional Patent Application No. 61/687,494, filed on Apr. 26, 2012 by Kimberly M. Nelson."

I need to know because if she actually has a patent filed, and it is just in pending status, I have to go a different route. I believe I can file an improvement patent, since my idea is a different design, although same function

You can always try to file an application for an improvement to a product or technology. If a patent is granted, you would then gain protection to that improvement. This, however doesn't mean you avoid having to license an existing patented invention should it exist.

  • “I don't think so, but as I said, it has only been a couple of months since the application has been declared abandoned and there still may be potential for reinstating it.“ There was a question about the time limit some months ago, I think it was 3 months until it gets really hard, though the law doesn't specify, so up to indefinitely long. There's also some provision about not being liable for infringing a patent during the abandoned time, but I don't know exactly how that goes. As to patent pending, either there is another patent, or they may not use that. – DonQuiKong Nov 15 '17 at 16:16
  • Though I can't find that time limit question, so maybe I remember that wrong. Only two unanswered questions like patents.stackexchange.com/q/14657/18033 – DonQuiKong Nov 15 '17 at 16:25
  • @DonQuiKong Thanks for the input. Until there is more clarity, I think my answer is as good as I can provide. – Eric Shain Nov 16 '17 at 2:27
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Her 2013 patent application was apparently published, meaning the cited 2012 PPA also became "available" in 2014, but not technically "published". You say she was also selling the items (perhaps since 2011). As such, it is all considered "prior art" representing the "state of the art" as of their respective filing date, and any offer to sell to the public, whether or not issued as a patent.

If there was a "final rejection" with the usual "shortened statutory period for reply", then it probably went abandoned two or three months later, when no reply was filed. MPEP § 711.02. Where such inaction was "unintentional". the possibility remains that the applicant may petition to revive the abandoned application and even petition for reconsideration of a refusal to revive, which may take more months (and fees).

Even in light of the prior art, you, she, or anyone else may file an application for patent of any similar invention, claiming something "new and non-obvious", and claim "patent pending" -- which has no legally enforceable effect.

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