© Copyright 2014, Oppedahl Patent Law Firm LLC
Disclaimer: This is not legal advice. Click for information on the purpose of this page.
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. The time periods and laws described here are complicated and what we present here is a simplified description of the law. You must consult competent counsel to get advice about this, so that counsel may take into account the factual details of your situation including all of the dates that are involved. Reading this web page does not make you a client of Oppedahl Patent Law Firm LLC.
Generally speaking, under U.S. patent law that applies to patent applications filed on or after March 16, 2013, a patent will not be granted to an applicant unless the application is filed prior to any public use or public disclosure of the invention anywhere in the world. There is a limited exception if the disclosure came from the applicant directly or was derived from the applicant's work.
In general this means that if you are considering a business decision to file your patent application today or tomorrow, you should probably file it today rather than tomorrow. Consider that someone might independently invent the same subject matter and might publish it tomorrow or use it publicly tomorrow, somewhere in the world.
If you yourself have published your invention or have used it publicly as of some date within the past year, you need to pay close attention to the date on which this event occurred, and to make sure that you consult competent counsel as soon as possible, and in any event long before a year has passed from the publication or public use.
These 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 filing of 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.
In the United States at least two approaches are possible to the protection of an invention in the face of an imminent public use or disclosure -- these approaches include filing a non-provisional US patent application or filing a US provisional patent application.
Get your patent application filed as soon as possible, and in any event get it filed prior to any public use or publication of your invention. Do not postpone a consultation with competent patent counsel.
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Last revised 2014.