The journey to securing a patent is fraught with legal nuances and requirements. Two significant considerations that can impact the patentability of an invention are the “public disclosure” and “on-sale” bars. 

What Is the Public Disclosure Bar For Patent Applications? 

One of the fundamental principles governing patent eligibility is the requirement of novelty. An invention must be novel, meaning it hasn’t been publicly disclosed before filing a patent application. 

What is Considered Public Disclosure?

Public disclosure occurs when an invention is made available to the public in a way that allows someone skilled in the relevant field to recreate the invention. Public disclosure can take various forms, such as presentations at conferences, publications in journals, demonstrations, or even discussions with potential investors or collaborators. 

What is the Grace Period for Public Disclosure Before Applying For a Patent?

The United States allows inventors a grace period of one year from the date of the first public disclosure to file a patent application. However, many other countries follow an absolute novelty standard, meaning any prior disclosure, even by the inventor, can jeopardize patent eligibility. To protect their rights, inventors should document all disclosures, keeping detailed records of dates, locations, and the nature of the disclosure. This documentation can be crucial in establishing the timeline and context of the disclosure.

What Is the On Sale Bar For Patent Applications? 

The on-sale bar is another critical aspect that inventors must consider when seeking patent protection. This rule prevents an inventor from obtaining a patent if the invention has been offered for sale or sold more than one year before the patent application filing date. 

What is Considered A Sale or Offer For Sale?

The on-sale bar applies when an invention is the subject of a commercial transaction, whether it’s an actual sale, an offer for sale, or even an agreement to sell. This includes both tangible products and services. The on-sale bar is not limited to final sales of a product; it can also include pre-production agreements, licensing discussions, and any other commercial activity related to the invention. The critical date for determining the on-sale bar is the date when the invention was first offered for sale or sold. Inventors should be vigilant in tracking these dates to ensure compliance with the one-year grace period.

Consequences of Not Being Aware of the Disclosure Bar 

The primary consequence is the loss of patent rights. If an inventor publicly discloses an invention before filing a patent application or engages in activities that trigger the on-sale bar, they may be barred from obtaining a patent. This can be a substantial setback, especially if the invention is valuable and has commercial potential.

Patent offices, including the United States Patent and Trademark Office (USPTO), have strict rules regarding novelty. If an invention is disclosed to the public or offered for sale before filing a patent application, it may be considered lacking novelty. This could result in a rejection of the patent application, and the inventor may lose the opportunity to protect their invention through the patent system. Without patent protection, inventors are left with fewer legal tools to prevent others from using, making, selling, or importing their inventions. This lack of protection may make it easier for competitors to replicate the invention without fear of infringement.

Do You Need Assistance with Your Patent Application? 

It is crucial for individuals and businesses to stay informed about intellectual property laws and seek professional advice to navigate the complexities of patent disclosure and on sale rules effectively. 

Working with an experienced team of New York City patent lawyers who can guide you through the process of protecting your inventions in the United States and in foreign jurisdictions is the first step toward success.