Can I Apply for a Patent If My Invention Is Already Publicly Disclosed?

Legally reviewed by Thomas Lemler - founder of Lemler IP

If you have invented something new and useful, you may want to protect your invention with a patent. That being said, not everything is patentable. For your invention to be considered patentable, it must meet certain strict requirements. For example, if your invention has already been publicly disclosed, it will likely prevent you from obtaining a patent, however, there are some exceptions. Please continue reading and reach out to a dedicated Washington, D.C. patent lawyer to learn more.

Can I still apply for a patent if my invention has been publicly disclosed?

One of the most important requirements for getting a patent is novelty. This means that your invention must be new and not already known to the public. If your invention has been publicly disclosed before you file your patent application, you may lose your right to obtain a patent. Public disclosure can include any of the following:

• Publishing a paper, article, or book about your invention
• Presenting your invention at a conference, trade show, or exhibition
• Selling or offering to sell your invention or a product that incorporates your invention
• Posting a video, photo, or description of your invention on social media or a website
• Disclosing your invention to someone who is not bound by a confidentiality agreement

What circumstances may allow me to patent an already publicly disclosed invention?

Depending on the specific circumstances of your case, you may still be able to apply for a patent if your invention is already publicly disclosed. Some scenarios where you may have a chance are as follows:

• You filed your patent application within one year of your public disclosure. This is known as the grace period and it applies only in the United States and some other countries. Importantly, however, this grace period is not absolute and it may not protect you from other disclosures.
• You filed your patent application before your public disclosure. This is known as the first-to-file rule and it applies in most countries around the world. That said, this rule does not guarantee that you will get a patent. Your application still has to meet other requirements such as usefulness, non-obviousness, and enablement.
• Your public disclosure was not enabling. This means that your disclosure did not provide enough information for someone skilled in the art to make or use your invention without undue burden or experimentation.
• Your public disclosure was accidental or unauthorized. If you did not intend to disclose your invention or someone else disclosed it without your permission, your invention may still be considered patentable.

Ultimately, applying for a patent for an already publicly disclosed invention can be complicated, which is why it is always important to consult with an experienced patent attorney before you disclose your invention or file your patent application. Contact Lemler IP today.