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Scenario 1:

  • I Started to manufacture and sell a product based on my unpatented invention.
  • A year later, still I am the only manufacturer of this product.
  • I then file a patent for it.

Will my patent be approved?

Scenario 2:

  • I Started to manufacture and sell a product based on my unpatented invention.
  • Within the same year, someone else has started to manufacture and sell this product.
  • I then file a patent for it.

Will my patent be approved?

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2 Answers 2

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In the US there is a one year grace period from first publication or sale of an invention. If you file up to the year exactly you might get a patent. There is no retroactive filing. You file when you file. A year plus a day is too late and the first sale might not be the start of the clock.

If you described it in detail in public or gave a demonstration of a prototype or put out a detailed advertisement then the year might have started earlier than you think.

Another issue is inventorship. You called it your invention. That is what is important, not the manufacture. Invention occurs at design-time of the product, not upon manufacture of the product. (Likewise, innovative manufacturing itself can also be patented if it makes possible a type of product-production that was not practical previously, but at some point the manufacturing process has its own design-time that predates the later manufacturing of the product.) The innovation (and thus the invention) occurs at the point you decided to deviate significantly from all prior art; that decision and envisioning of the better alternative occurred no later than design-time—not at point of manufacture, and definitely not in retrospect while selling the manufactured products.

Most of the world has no such grace period.

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  • What about scenario number 2, where someone else has already started to manufacture your invention within the year?
    – Bear Bile Farming is Torture
    Feb 10, 2022 at 12:15
  • @freelionsntigersfromcages If you don't have a patent, you can't stop anyone else from manufacturing your product. If you wait a year plus one day from the first public disclosure to file a patent application, you will not get a patent.
    – Eric S ♦
    Feb 10, 2022 at 16:53
  • I am aware that I cannot stop someone from manufacturing my invention if I don't have a patent. My follow up question was that if I can still get a patent if I file within 1 year of my own manufacturing but someone else has since also started manufacturing it. Which means that, once approved, I can then stop them from manufacturing it.
    – Bear Bile Farming is Torture
    Feb 10, 2022 at 16:57
  • Yes - you can use the courts to try to stop them once you get a granted patent.
    – George White ♦
    Feb 10, 2022 at 17:32
  • @GeorgeWhite, thank you for integrating my edit into your answer, although the way that you did it denied me getting credit for my contribution.
    – Andreas ZUERCHER
    Feb 11, 2022 at 15:32
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If conception of the invention or reduction thereof to practice (hereinafter: “to Invent” or “Invention” etc.) occurs before March 15, 2013, and did so before anyone else, one may obtain the patent even if one hasn't filed for a patent thereon at any time provided someone else did file for and obtained the patent who was not the first to Invent since the first to Invent is entitled to the patent. This may occur through, for e.g., a lawsuit, or civil agreement. This pre-March 16, 2013 era was governed by the “first-to-invent" principle.

However, any invention since March 16, 2013, the full force and effect of the America Invents Act, would not have such opportunity to sue or seek a settlement as the "first-to-invent" rule was changed to a "first-inventor-to-file" except in case of theft. Even under this principle, one theoretically could sue if the facts can be established that what happened for another to file earlier was the result of conversion or even criminal theft of notes or other documents including the invention to "obtain" the patent through criminal and/or civil prosecution.

Accordingly, scenario 2 if occurred since March 16, 2013 would, indeed apply, but it is advisable to be ready to defend the position that one was, in fact, an inventor (and not a "patent thief").

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  • There are problems with this answer. First “ If one invented the invention before March 15, 2013 in the U.S.,” No. First where it is invented is not relevant, second the cut off date is tied to when filing occurred not when inventing occurred. If filed after that date AIA rules are followed, not if invented after that date. A main point if the AIA is to not care when invention occurred so it would be weird to use date of invention as a cut off.
    – George White ♦
    Sep 21, 2022 at 16:05
  • Huh! What if an invention was first filed elsewhere, could a pre-AIA patent be still claimed in the U.S. just because a parent, say, was denied in another jurisdiction? (If you want, I’d ask it in a separate question)
    – PatentosPite
    Sep 21, 2022 at 16:08
  • The cut off depends on the claimed priority date so a foreign filing under the Paris Convention property Claimed for priority would determine if a U.S. application was AIA or not independent of the outcome of that application.
    – George White ♦
    Sep 21, 2022 at 16:12
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    It is a standard of “reasonable continual diligence”. Case law has accepted excuses and rejected excuses. They key thing is all if this is to decide an interference case between an earlier filer and a purported earlier inventor not to give a right to someone who has yet to file. Pre AIA.
    – George White ♦
    Sep 22, 2022 at 20:46
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    @GeorgeWhite Now we are in agreement.
    – PatentosPite
    Sep 22, 2022 at 22:48

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