Apply for patents and designs before selling! Once one year has passed since the product was sold, patent rights and design rights cannot be obtained.
Below is an article published in the Chubu Keizai Shimbun.
Apply for patents and designs before selling!
I have received several inquiries from people saying, ``This product is selling well, so I would like to apply for a patent (design application)!''
Once a product is sold, it loses its novelty. Without novelty, patent applications and design applications will be rejected and patent rights and design rights will not be obtained. If an application is filed within one year from the date of first sale, the novelty of the product will not have been lost due to the sale, if an application is filed under the exceptions to the loss of novelty.
However, it often happens that a year has passed since the first sale. In this case, you have no choice but to give up on acquiring patent rights or design rights.
A company president once said to me, ``Isn't it strange that we have a system where you can't get a patent right if you sell something? Even if you spend money applying for something that you don't know whether it will sell or not, if it doesn't sell, the application fee is wasted. I've heard people say to me, "Isn't that right! They're selling well, so they're spending money to apply! That system is strange!"
I understand what you are thinking, but under the current system, you will no longer be able to obtain patent rights or design rights after one year has passed from the date of first sale. If you want to obtain patent rights or design rights, file a patent application or design application before selling your product.
Many people don't know that once a product is sold, it loses its novelty, making it impossible to obtain patent rights or design rights.
Within one year from the date of publication of sales, etc., by filing a patent application or design application to which the exceptions to loss of novelty apply, it will be considered that there was no publication of sales, etc., and the patent application or design application will be filed. A design application cannot be rejected for novelty violations due to publication, such as sales.
If you request a patent office to file your application, you will incur costs for the procedure for exceptions to loss of novelty.
Previously, in the case of design applications, it was necessary to submit written proof of exceptions to lack of novelty to the Patent Office for all reasons for publication, so customers were not aware of this and published many publications on SNS etc. In such cases, the cost of submitting a certificate of exception to the loss of novelty became expensive.
From January 1, 2024, for design applications, exceptions to the loss of novelty will apply to identical or similar designs published after that date by proving a publication act on one of the earliest publication dates. is now applicable.
As mentioned above, if you file a patent application or design application within one year from the date of publication of the sale, etc., you can apply for the exception to the lack of novelty, but if the sale, etc. Once one year has passed from the date of publication, exceptions to the loss of novelty cannot be applied.
During the examination process, a patent or registration decision may be made without the examiner knowing of the sale or other disclosure.
However, the examiner may search for information on the Internet and find the fact that the product has been disclosed, such as a sale. In this case, the patent application or design application will be rejected.
Even if a patent right or design right is established and registered without the examiner being aware of the fact of publication of sales, etc., a third party may discover the fact of publication of sales, etc. and file an invalidation trial. A patent or design right may be invalidated if you file a claim.
Such a request for invalidation trial is often filed by a third party to defend against a patent or design right holder exercising their rights against a third party.
Even if the exception to loss of novelty is applied, if the product is sold or otherwise disclosed, a third party may file a patent application or design application.
After all, you should file a patent application or design application before selling.
