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Before making plans for the timing of the filing of a patent application, any inventor should seek advice of competent counsel. The time periods described here represent only a few of the factors that will influence how quickly a patent application should be filed.
Under U.S. patent law, a patent will not be granted to an applicant unless the application is filed less than one year from the date that the invention was sold or offered for sale within the United States. Yet another condition imposed under U.S. patent law is that the patent will be denied unless the application is filed within one year of the date the invention was described in a printed publication anywhere in the world.
These requirements are cumulative in the sense that either of those two events, occurring more than a year ago, will be a bar to patentability. Thus, if your invention has been described in a printed publication anywhere in the world, or if your invention has been sold or offered for sale in the United States, then you would be wise to pay close attention to the dates on which those events occurred, and to make sure that you consult competent counsel long before the expiration of the one year grace periods.
While these are the two most commonly mentioned so-called "statutory bars" in U.S. patent law (35 USC section 102), they are by no means the only factors that should be taken into account when one decides when to file a patent application (or, when to consult patent counsel). Numerous other factors influence the timing of the filing of a U.S. patent application. For one thing, there is always the possibility that someone else has filed or will soon be filing a patent application on the same subject matter. The sooner you file, the more likely it is that you will prevail against someone else who has filed or is about to file.
The discussion up to this point assumes nothing more than that the inventor is interested in getting United States patent protection. It is important to keep in mind, however, that if there is any possibility that the inventor would want to seek patent protection in countries outside the United States, then it is imperative to seek advice of competent counsel in advance of any public disclosure or sale of the invention. The reason for this is that in many countries outside the United States, public divulgation of the invention at any time prior to the patent application may bar the grant of the patent.
For these reasons it is wise to consider setting a goal of getting the patent application on file prior to any public disclosure or sale.
Even if the invention has not been publicly divulged there are reasons to file a patent application sooner rather than later. Filing the application sooner will help to some extent in prevailing over others who happen to have developed the invention independently and who also file a patent application. In the United States two approaches are possible to the protection of an invention in the face of a statutory bar such as the on-sale bar or the publication bar: filing a patent application or filing a provisional patent application.
No U.S. patent will be granted on an application if the invention was disclosed in a printed publication anywhere in the world more than a year before the filing of the application. Furthermore, no U.S. patent will be granted on an application if the invention was sold or offered for sale in the U.S. more than a year before the filing of the application. Finally, 35 USC section 102 lists other conditions that will bar patentability and should be consulted prior to any decision to postpone filing a patent application.
For those who are interested in also obtaining protection in countries other than the U.S. it is important to bear in mind that the patent application should be filed prior to any public divulgation of the invention.
In all cases, it is advantageous to file a patent application sooner rather than later.
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Last revised February 2, 2007.