Can I Patent an Old Product that I Found?

No — but the reasons why are important to understand before you invest time and money pursuing a patent.

This is a question I hear fairly often, and the short answer is no. There are two fundamental problems with trying to patent an old product you found.

You Can Only Patent Something You Invented

A patent can only be granted to the actual inventor — the person (or persons) who conceived of the invention. If you found an old product that someone else made, you are not the inventor of that product. Filing a patent application and falsely claiming to be the inventor is a serious matter that can result in the patent being unenforceable and expose you to other legal consequences.

This applies even if the original inventor is unknown, deceased, or out of business. Inventorship is based on who actually conceived of the invention — not who found it, owns it, or wants to commercialize it.

Prior Public Disclosure is Prior Art

Even setting aside the inventorship issue, any prior public disclosure or sale of a product makes it prior art. Under U.S. patent law, an invention must be new — meaning it cannot have been publicly disclosed, sold, or known before the patent application’s priority date.

If a product already exists and has been publicly available, it is prior art against any patent application claiming that product. A patent examiner will find the prior art and reject the application. You cannot resurrect an old product from the public domain and obtain patent rights to it.

What You Can Do

While you cannot patent something you did not invent or that already exists in the public domain, there are legitimate paths forward if you are trying to commercialize or improve upon an existing product:

• Improvements and modifications — If you have made a genuine improvement or modification to an existing product that is new and non-obvious, that improvement may be patentable. The patent would cover your improvement, not the underlying product.
• Design patents — If you have developed a new ornamental design for an existing type of product, a design patent may be available for the new appearance.
• Licensing — If an existing patent covers the product you are interested in, you may be able to license those rights from the patent owner.
• Freedom to operate — If the product is old enough that any patents covering it have expired, you may be free to make and sell it without a patent of your own — but you would not have exclusive rights either.

If you have developed something new and want to understand whether it is patentable, I am happy to discuss it. Contact me to talk through your invention and your options.

Related Topics:

What is Prior Art?

What is a Patent Search?

Can Someone Patent My Invention Before Me?