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Patenting in the U.S.
The U.S. patent law system is among the most lenient in the world regarding prior disclosure of inventions. It allows inventors to publish and disclose the invention or offer it for sale prior to filing a patent application, provided that a patent application is filed within one year of the publication or offer for sale. If you wait longer than one year, your patent rights are forfeited. The one year period under U.S. patent law is known as a “grace period”.
Patenting Outside the U.S.
Most countries are more stringent than the U.S. with respect to disclosure. They require that a “priority patent application” be filed before the first public disclosure (whether oral or written).
What is a Public Disclosure?
“Public disclosure” is not confined to publications in books and technical journals. It is important for faculty to realize that poster sessions, slides, lectures, seminars which are open to the public, letters and conversations can count as a bar to patentability – depending on the country.
- Any written or oral disclosure, even to a single person, counts as a “public disclosure” in most countries – unless the recipient agrees that the information was conveyed in confidence. Disclosures to employees of your own institution do not generally count.
- In the U.S., the “public disclosure” must be made in writing. This includes slides at meetings, poster sessions, private correspondence, advertisements, etc.
- An "offer for sale" counts as a bar to patenting after the one year "grace period" in the U.S. Showing your product at a trade show may very well count as such.
What Content Constitutes a Public Disclosure?
Simply announcing that you have made an invention is not a “public disclosure” of the invention. In order to act as a patent bar, the disclosure must be “enabling” – that is, it must teach someone “of ordinary skill in the art” how to actually duplicate the invention.
An offer for sale after the grace period, even if it does not teach someone how to make the invention, is a bar to patentability in the U.S., but is not a bar in Europe if it does not “enable”.
What if I Want to Discuss My Invention With Others Before I've Filed a Patent Application?
You should have the person(s) or company sign a confidentiality agreement, agreeing to maintain knowledge of your invention in confidence, before you have the discussion. Please contact CTTC for assistance with a confidentiality agreement.
What if I Accidentally Make a Public Disclosure?
In the U.S., as stated above, you have a one year grace period after the publication in which to file the patent.