[Direct answer]In the Beijing area, products that have been publicly sold cannot, in principle, obtain patent rights for the product itself. Public sales will make the product's technical solutions become prior art, thus losing the novelty required by Article 22 of the Patent Law of the People's Republic of China (amended for the fourth time on October 17, 2020 and implemented on June 1, 2021) — prior art refers to technologies that were publicly known at home and abroad before the application date. The six-month novelty grace period only applies to statutory exceptions (emergency situations, public interest, first public disclosure, first exhibition at an international exhibition sponsored or recognized by the Chinese government, first publication at a prescribed academic or technical conference, and disclosure by others without consent), and ordinary market sales are not included, so it is impossible to remedy through the grace period. If the product does have protection value, you can consider improving and innovating it and reapplying for a patent, or continuing to implement it within the original scope and strengthening trade secret protection. For more details, please refer to the following link:Intellectual property protection and corporate legal services.

1. Problem background and typical scenarios

In practice, the situation of "selling first and applying later" is very common: companies launch their products in the peak season and lag behind in patent awareness; inventors test-market samples to verify the market without realizing that the test-marketing itself constitutes public disclosure; they sell products first through exhibitions, e-commerce live-streaming, and crowdfunding platforms; and employees take the technology with them when they leave the company and disclose it elsewhere. Many business operators mistakenly believe that "as long as they haven't published papers or applied for patents, the technology won't be disclosed", but they don't realize that selling or using the technology publicly, or making it known to the public in other ways, will make the technology fall into the scope of prior art. Once it's disclosed, not only will it be difficult for them to obtain patent rights, but competitors can also freely implement the same technology. They can only continue to use it within the scope of prior use defense. The correct order of remedial measures should be: first assess the degree of disclosure and room for improvement, then decide on the remedial path. For related arrangements, please refer to the following materials:Intellectual property protection and corporate legal services.

II. Key points of contention

There are three controversial aspects of such issues. Firstly, the criteria for determining "public disclosure": Whether the object, quantity, and location of the sale are sufficient to make the technical solution accessible to the public is the key to determining whether it constitutes public disclosure. Small-scale targeted sales and trial sales with strict confidentiality obligations generally do not constitute public disclosure, while mass production sales aimed at the general public generally constitute public disclosure. Secondly, the scope of application of the grace period: According to Article 24 of the Patent Law, legal exceptions for disclosure within six months before the application date do not result in loss of novelty, but the exceptions are clearly defined, and ordinary sales disclosure is not included. To defend against the grace period, there must be legal circumstances to support it. Thirdly, whether patentability can be regained through improvements: If the improved solution is inventive compared with the disclosed technology, the improved part can still be applied for and granted a patent, but the scope of protection is limited to the improvement points. For technical contracts and confidentiality arrangements, it can be followed up accordingly.Legal services for corporate commercial and contract disputesSupplementary evidence.

III. Professional analysis by Hengluo Lawyers

Based on practical experience in handling intellectual property layout services, the room for remediation in the case of products being "launched to the market before applying for patents" is often smaller than expected. In most cases, the public disclosure of sales has already rendered the technical solution prior art, and applications based on the original design will be rejected due to loss of novelty. What enterprises can do is typically to make substantial improvements on the basis of existing disclosures - replacing structures, optimizing processes, and enhancing performance, and then resubmit applications based on the improved aspects, with the scope of protection correspondingly narrowed. Another often overlooked path is prior use rights: According to Article 75 of the Patent Law, those who have already manufactured identical products or made necessary preparations for manufacturing and use before the patent application date, and continue to manufacture and use within the original scope, shall not be deemed to infringe patent rights. This means that even if others later obtain rights to the same technology, prior users can still continue to implement it within the original scope. Hengluo Law Firm advises enterprises to establish a "pre-market patent inventory" mechanism, moving the application node forward to before the sales node. When necessary, through legal means, they can protect their rights and interests in advance.Beijing Henglu Law FirmObtain professional support from the official website.

IV. Practical suggestions and legal basis

The legal basis is mainly Article 22 of the Patent Law of the People's Republic of China (amended for the fourth time on October 17, 2020 and implemented on June 1, 2021) (conditions for granting patents for inventions and utility models, and definitions of novelty, inventiveness, and practicality; prior art refers to technologies that were publicly known in China and abroad before the filing date), Article 23 (conditions for granting patents for designs), Article 24 (six-month novelty grace period and exceptional circumstances), Article 33 (amendments must not exceed the scope of the original application documents), and Article 75 (prior use is not considered infringement). Practical suggestions: 1. Retrace the product sales, promotions, and exhibition records to assess the scope and timing of technology disclosure. 2. Make substantial improvements to the design and resubmit the application. 3. Establish a trade secret protection system for core processes and formulas that cannot be disclosed publicly, and sign confidentiality agreements. 4. If the product is intended for export to overseas markets, evaluate the PCT international application and target country filing strategies in advance, and handle related foreign affairs accordingly.Financial capital and cross-border legal services involving foreign affairsCoordination.

5. Hengluo Law Firm's Reminder

After a product is publicly sold, applying for a patent is the core conclusion that "it's difficult to protect the original version, but improvements can be protected, and prior use can be defended". Applications based on the original version are usually rejected due to loss of novelty. For those with real value, it's necessary to make substantial improvements on the basis of the disclosed technology and re-apply as soon as possible, while organizing sales records and R&D process documents into evidence of the improvement chain. For core technologies that shouldn't be disclosed, it's more practical to protect them with trade secrets and confidentiality agreements than to forcefully apply for patents. In addition, it's essential to move the "patent application" forward before the new product goes on sale, so as to avoid falling into traps again in the process. For those who are unsure whether the technology has been disclosed or whether the improvements meet the requirements of inventiveness, it's recommended to consult professional lawyers for evaluation as soon as possible.

VI. Frequently Asked Questions

Q1: Can I still apply for a patent for a product that has already been put on the market?

In terms of the technical solution of the product itself, it is usually not possible. According to Article 22 of the Patent Law (amended for the fourth time on October 17, 2020 and implemented on June 1, 2021), the invention granted a patent right shall have novelty and not belong to the prior art. Prior art refers to the technology that is publicly known at home and abroad before the application date, and the public sale is sufficient to make the product's technical solution known to the public. The six-month grace period only covers statutory exceptions to disclosure, and ordinary sales disclosure is not included. There are two remedies: first, make substantial improvements to the product and re-apply for a patent for the improved parts; second, if others have obtained rights to the technology, they can claim the right of prior use defense according to Article 75 and continue to implement it within the original scope. It is recommended to first evaluate the scope of disclosure and the scope for improvement before deciding on the path to take.

Q2: What do I need to prepare for applying for a patent, and how can I prove that the technology has not been disclosed?

During the application stage, you need to prepare the request letter, the description and its abstract, the claims, and, if necessary, the drawings and the request for substantive examination; if you appoint an agent, you also need to provide the power of attorney. As for the proof of "non-disclosure", if you claim a novelty grace period, you must provide evidence that the disclosure belongs to the exceptions stipulated in Article 24 of the Patent Law, such as the exhibition certificate of the first exhibition at an international exhibition, the conference minutes of the first publication at an academic conference, and the evidence of disclosure by others without consent, etc. Ordinary sales records cannot be used as the basis for the grace period. It is recommended to also organize the R&D process documents, internal test records, and confidentiality agreements to prove the process of technology formation and its controllable scope. The more solid the materials are, the more conducive it will be to explain the technical status during the review.

Q3: How much does it cost to apply for a patent, and what are the official fees?

The fees mainly include three parts: First, the official fees charged by the China Intellectual Property Administration, such as the application fee, publication and printing fees, and substantive examination fees for invention patent applications. After authorization, there are also annual fees. Individuals and enterprises can request fee reductions and deferrals in accordance with the regulations, and the specific amounts are subject to the latest official announcements. Second, the agency fees charged by patent agencies, which are negotiated according to the type and complexity of the application and do not have a unified standard. Third, additional fees that may arise from procedures such as responding to review opinions and review requests. Compared with fees, what is more worth investing in is the control of the application timing—submitting the application before public sales is often more economical than making a remedial application afterwards. It is recommended to start the application as early as possible within the budget and pay attention to various payment deadlines to avoid the application being deemed withdrawn due to late payment.

Q4: How long after the public sale can I still apply? Is it still possible to apply in time?

The question "How long can I still apply for a patent?" needs to distinguish between two scenarios: If the disclosure falls under the exceptions specified in Article 24 of the Patent Law, the novelty will not be lost within six months before the application date, meaning there is still a chance to submit an application within six months from the date of the exceptional disclosure. However, ordinary sales disclosures do not apply to the grace period. Once disclosed, they constitute prior art, and submitting an application in the same form will be rejected due to loss of novelty, with no "supplementary filing period" to remedy the situation. Therefore, the real critical point is not "how long after the sale," but "whether an application has been submitted before the sale." If the product has not been widely disclosed or the disclosure scope is limited, it is necessary to immediately stop its dissemination and consult and evaluate as soon as possible; if it has been fully disclosed, it is necessary to shift to improving the application or considering the defense of prior use.

Q5: If I want to protect the products that have already been sold, what should I do specifically?

It is recommended to follow a four-step approach: 1. Thoroughly review the product's public disclosure history—including the first sales date, sales channels, promotional materials, and exhibition records—to assess the scope of the technical solution's public disclosure. 2. Commission a professional organization to conduct patent searches and novelty assessments to confirm the scope for filing a patent application as is, while identifying whether others have already preemptively registered the technology. 3. If there is genuine value for improvement, promptly complete substantive improvements and submit a new application, while simultaneously organizing R&D process documents as evidence of the improvements. 4. Establish trade secret protection for core technologies that should not be disclosed, and sign confidentiality agreements with employees and partners to prevent leaks. In the future, when launching new products, it is essential to advance the patent application process earlier. For uncertainties regarding the scope of public disclosure or the feasibility of improvements, consult professional lawyers as soon as possible.

The above Q&A is mainly based on judicial practices in Beijing. There may be differences in the adjudicative opinions in different regions. It is recommended to consult professional lawyers according to the specific circumstances of the case.

If you are currently facing similar problems, it is recommended that you consult a professional lawyer as soon as possible with the relevant evidence materials, to avoid missing the statutory time limit.Intellectual property protection legal services·Beijing Hengluo Law Firm

Disclaimer: This article is compiled based on current effective laws and regulations and open adjudication rules, and is for general reference only. It does not constitute a formal legal opinion on specific cases. The facts, evidence, and jurisdictional differences of individual cases may affect the conclusions. In case of disputes, please consult a practicing lawyer in time.