Question
We launched a product a couple of months ago, and a competitor has now issued a press release that they have a similar technology. It looks like they somehow learned that we wanted to apply for a patent for the product. With their press release right before the filing of our patent application, can we even get a patent still?
Answers: 2 public & 1 private
35 USC 102 does afford you with a 1 year grace period. As long as you file a patent application within a year of making your invention public, your own disclosure (subject to the provisions of the law) will not be used against you as prior art.
The competitor's disclosure however may be used as prior art against you, unless it is identical to your invention.
According to 35 USC 102, if the claimed invention was in public use or on sale prior to the priority (filing) date of your application, you are barred from obtaining a patent because the on sale or public use is effective prior art. See 35 USC 102 (a)(1). The only exception to the rule is if you, as the inventor, made the disclosure or some disclosure was made public by someone authorized by you - otherwise, if the public use or on sale was by a third party unconnected to you, you are barred from obtaining a patent.
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