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Wealth of Ideas, December 2004
Aspiring inventors know that if they want an issued
patent, their invention must be novel, non-obvious and
useful. However, even if all of these conditions are
met, the patent application could be barred if it is
not filed within a year of the first public disclosure
of the invention. This is known as a “statutory
bar,” and the United States is virtually unique
in granting this one-year “grace period.”
Foreign patent laws most often require “strict
novelty” – a patent application must be filed
before the invention is disclosed publicly.
A wide range of activities can constitute “public
disclosure” and start the clock running on the
inventor’s one-year grace period. Any of the following
activities, if performed within the United States, can
be considered public disclosure: publicly using the
invention, offering it for sale, or describing it in
a printed publication. The definition of “printed
publication” is also more far-reaching than one
might expect; it can even extend to a posting on an
Internet newsgroup, a slide show, or a trade show display.
One can also lose US patent rights by having a foreign
patent issue for the same invention prior to filing
the US patent application. This bar applies even if
the foreign patent is later held to be invalid.
So before offering your product for sale, approaching
a corporation or manufacturer with your invention, writing
an article for a trade magazine about your discovery,
or even sharing your news with your favorite email group,
make sure that your actions will not publicly disclose
your invention before you’re ready to begin your
one-year grace period.
And if there is any possibility
that you may want to file patent applications in other
countries, file the U.S. patent application first. Generally,
it is best to speak with your patent attorney before
making any disclosures about your invention.
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