# Is a non-patented invention still ownable? **URL:** \ **Category:** Factual Questions\ **Created:** [November 25, 2020, 10:18pm UTC](https://boards.straightdope.com/t/is-a-non-patented-invention-still-ownable/926449 "2020-11-25T22:18:30Z")\ **Posts on this page:** 7\ **Page:** 3
**Author:** ![Acsenray](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/acsenray/32/4519_2.png) [@Acsenray](https://boards.straightdope.com/u/Acsenray)\ **Post date:** [December 2, 2020, 1:30am UTC](https://boards.straightdope.com/t/is-a-non-patented-invention-still-ownable/926449/41 "2020-12-02T01:30:50Z")
> [@peccavi](#): > > I think you mean “trade secret” instead of patent in a couple of places there. If you have a patent, there is no bar date, because, well, you already have the patent. Yes, you’re correct. I meant to say “trade secret” in my numbered points. But actually I need to amend what I said there, because of rulings by the U.S. Court of Appeals for the Federal Circuit, which hears all appeals in patent cases. See here: [https://www.bakerbotts.com/thought-leadership/publications/2018/09/protect-your-processes](https://www.bakerbotts.com/thought-leadership/publications/2018/09/protect-your-processes) > The Federal Circuit has explicitly held that the commercial sale of a product made using a claimed method constitutes a sale of the method within the meaning of 35 U.S.C. § 102.3 That means that if you sell a product that _incorporates_ a method in its production, then the on-sale bar applied to that method. So, if you choose the trade secrets route, you absolutely forego being able to obtain a patent on that method in the future (after one year). You have to choose between patents and trade secrets. You can’t have both on the same invention. ---
**Author:** ![Marvin\_the\_Martian](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/marvin_the_martian/32/2898_2.png) [@Marvin\_the\_Martian](https://boards.straightdope.com/u/Marvin_the_Martian)\ **Post date:** [December 2, 2020, 3:35am UTC](https://boards.straightdope.com/t/is-a-non-patented-invention-still-ownable/926449/42 "2020-12-02T03:35:38Z")
The old US system of “first to invent” was changed effective in 2013 to a “first to file” system, primarily to bring the system in line with most of the rest of the world. Public disclosure in both systems will present a bar to obtaining a patent (or start a clock resulting in a bar) as well as preventing others from patenting the same idea independently. As mentioned, this can be sale of a product or publication of details of the invention. Large companies used to have their own publications (the _Bell System Technical Journal_ comes to mind) where they would defensively publish ideas that they might not be interested in pursuing in order to prevent competitors from patenting them. Such journals were fairly narrowly distributed, but would end p in most engineering libraries. ---
**Author:** ![Francis\_Vaughan](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/francis_vaughan/32/3093_2.png) [@Francis\_Vaughan](https://boards.straightdope.com/u/Francis_Vaughan)\ **Post date:** [December 2, 2020, 4:44am UTC](https://boards.straightdope.com/t/is-a-non-patented-invention-still-ownable/926449/43 "2020-12-02T04:44:59Z")
> [@Marvin\_the\_Martian](#): > > Large companies used to have their own publications (the _Bell System Technical Journal_ comes to mind) where they would defensively publish ideas that they might not be interested in pursuing in order to prevent competitors from patenting them One treasured item in my memorabilia collection is The Bell System Technical Journal, vol 57 no 6 part 2. Its content? The Unix Time-sharing System. ---
**Author:** ![Acsenray](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/acsenray/32/4519_2.png) [@Acsenray](https://boards.straightdope.com/u/Acsenray)\ **Post date:** [December 2, 2020, 3:59pm UTC](https://boards.straightdope.com/t/is-a-non-patented-invention-still-ownable/926449/44 "2020-12-02T15:59:07Z")
> [@Marvin\_the\_Martian](#): > > The old US system of “first to invent” was changed effective in 2013 to a “first to file” system To be precise, it’s “first inventor to file.” ---
**Author:** ![Telemark](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/telemark/32/372_2.png) [@Telemark](https://boards.straightdope.com/u/Telemark)\ **Post date:** [December 2, 2020, 4:24pm UTC](https://boards.straightdope.com/t/is-a-non-patented-invention-still-ownable/926449/45 "2020-12-02T16:24:45Z")
> [@Francis\_Vaughan](#): > > One treasured item in my memorabilia collection is The Bell System Technical Journal, vol 57 no 6 part 2. Its content? The Unix Time-sharing System. I’ve got that as well. Doesn’t everyone? ---
**Author:** ![peccavi](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/peccavi/32/388_2.png) [@peccavi](https://boards.straightdope.com/u/peccavi)\ **Post date:** [December 2, 2020, 5:55pm UTC](https://boards.straightdope.com/t/is-a-non-patented-invention-still-ownable/926449/46 "2020-12-02T17:55:47Z")
> [@Melbourne](#): > > “Although subject to certain limitations, [23] the prior user rights defense is now sufficiently comprehensive that a decision to use secrecy can be made in the comfort of knowing that the activity will almost certainly not be prohibited by virtue of a later-issued patent.” Hmm, seems to be the reverse of what I thought I was told by our counsel. I may not be remembering the conversation correctly, perhaps he was describing the prior risks versus the current risks with regards to trade secrets. I’ll bring it up with him the next time I see him. ---
**Author:** ![Francis\_Vaughan](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/francis_vaughan/32/3093_2.png) [@Francis\_Vaughan](https://boards.straightdope.com/u/Francis_Vaughan)\ **Post date:** [December 2, 2020, 11:59pm UTC](https://boards.straightdope.com/t/is-a-non-patented-invention-still-ownable/926449/47 "2020-12-02T23:59:18Z")
> [@Telemark](#): > > I’ve got that as well. Doesn’t everyone? 😀 They should. It is a remarkable work. [Previous page](https://boards.straightdope.com/t/is-a-non-patented-invention-still-ownable/926449.md?page=2)