NOTICE: The content of this article is intended to only provide a general guide to the U.S. patentability bars. Advice from a patent attorney should be sought about your specific circumstances.
Patentability Bars: Prior Patenting, Printed Publication, Public Use and On Sale
In the United States pursuant to 35 USC 102(b), if an invention was publicly disclosed or on sale more than one-year before a patent application is filed, you typically cannot file a patent application. In most foreign countries, if an invention was in public use or on sale just one day before a patent is filed, you typically cannot file a patent application (with some countries providing a one-year grace period). In other words, if you want to preserve your foreign patent rights, you usually need to file a patent application prior to any activity that could be considered a bar to patentability.
Hence, it is important that inventors and businesses keep an invention confidential until they have decided if patent protection is desirable for their invention. Understanding what activities can result in a public disclosure or on sale bar to patentability is important for all patentees to be aware of. 35 U.S.C. 102(b) specifies what activities will result in the loss of patent rights.
Patentability in the United States – 35 U.S.C. 102(b)
35 USC 102(b) specifies the following:
A person shall be entitled to a patent unless – … (b) the invention was patented or described in a printed publication in this or a foreign country or in public use or on sale in this country, more than one year prior to the date of the application for patent in the United States.
If your invention has been publicly disclosed or on sale more than one year prior to filing a patent application, you most likely have lost your patent rights. If you believe any activity by you or a third-party could be considered a public disclosure or on sale activity, you should immediately contact your patent attorney to determine your patent rights.