design patent for 4-yr-old design

Patent Attorney

Unfortunately, you are barred from obtaining a patent.
35 USC 102(a)(1) states that if the invention was available to the public prior to your effective filing date of your application, which would be the current date and you said that the device has been available to the public for four years, you are barred from getting a patent. Even under 35 USC 102(b)(1), you effectively have a grace period of one year but you are well beyond the one-year grace period.

Patent Attorney

Hi,

First, I'm sharing general law with you, and for any specific advise, I recommend you seek out the services of a patent attorney etc.

Almost the entire world is absolute novelty. That means any disclosure prior to filing is a bar. The US allows for a 1 year grace period. In that, if the invention is publicly disclosed by the inventor (or by another that derived it from the inventor), then that starts a 1 year time period. The inventor has to file within that year or is permanently barred.

What constitutes a public disclosure is case law dependent. In general, its very easy to publicly disclose the invention.

Now for the catch. Pre-AIA laws under first-to-file had well established cases to know what a public disclosure meant. After AIA it isn't as clear, because the 35 USC 102 & 103 statute wording has changed in conjunction with no real case law letting practitioners know how the courts are going to interpret the new wording.

A general consensus of practitioners feel that most of the old case law that defines public disclosures will be somewhat the same except for private offers for sale (private prior art).

I have quoted a portion of the AIA 35 USC 102 below for you to read.

Your question brings up "for sale" issues and "public use" issues. That said, there is an amazing amount of fine details that need to be known about these events and the case laws that apply to them. What you think "public use" may be isn't the same thing as what courts have held the words to mean. That is why I highly recommend you talk to a professional to go over them in detail, because its very complicated, and there is no way to answer your question online.

Hope this helps,
Mary
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AIA 35 USC 102(a) & (b) states (a) NOVELTY; PRIOR ART.--A person shall be entitled to a patent unless--
(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention; or
(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
(b) EXCEPTIONS.--
(1) DISCLOSURES MADE 1 YEAR OR LESS BEFORE THE EFFECTIVE FILING DATE OF THE CLAIMED INVENTION.--A disclosure made 1 year or less before the effective filing date of a claimed invention shall not be prior art to the claimed invention under subsection (a)(1) if--
(A) the disclosure was made by the inventor or joint inventor or by another who obtained the subject matter disclosed directly or indirectly from the inventor or a joint inventor; or
(B) the subject matter disclosed had, before such disclosure, been publicly disclosed by the inventor or a joint inventor or another who obtained the subject matter disclosed directly or indirectly from the inventor or a joint inventor.

Patent Attorney

Hi, I have a little bit more opportunist approach. The lack of novelty is a thesis which shall be justified by one who claim. For ex: these conversations are good evidences for proving the lack of novelty if the third parties know this page, you and the design which we have been talking about. I advice you to ask yourself that ( probably for your next designs); is it provable by third parties that your design is not new?