Only a non-disclosed invention can be patented

A patentable invention needs to be novel, which is why it cannot be made available to the public before filing a patent application. A wide range of actions are considered publication, so the safest measure is to keep the invention completely in secrecy until a patent application has been filed.

Disclosing an invention means that the invention has been made available to the public. It does not only mean scientific publication or other detailed, written description of the invention. Mere discussing the invention with friends in a local bar can be seen as disclosing the invention. The following ways of disclosing the invention can be for example problematic for patenting:

  • marketing material, for example a brochure
  • presentation at a fair or in a conference
  • client event
  • a video uploaded to the internet
  • an article at a local newspaper
  • presentation at a university
  • a picture in social media
  • another patent or utility model application
  • using the invention in a manner that allows anyone to see
  • sales of a product according to the invention

It is not important in any of the cases if someone has actually read or seen the disclosure, but only if the material has been publicly available. Even public availability for a short period of time is an obstacle for patenting the invention.

An exception to this rule is when the invention has been presented to an audience, which cannot understand the invention. In this case, it is considered that the invention has not been disclosed.

When can the invention be published?

Prior art includes everything that has been disclosed before the filing date of the patent application. Therefore, the invention can be published even on the same day as the patent application is filed. It is however safer to wait at least to the day after in order to have time to notice whether there has been technical problems with filing the application.

How to present a new invention to customers and partners?

The best way to ensure that the invention has not been made public is to keep it as a secret until the patent application has been filed. However, sometimes it is necessary to present the invention to customers or partners during the development phase. In these cases, one has to make sure that there is a written non-disclosure agreement. Under such agreement, the discussion will not affect patentability of the invention.

It is always a good idea to consult a patent attorney before disclosing an invention in any form to make sure patenting will remain a future option. Laine IP is happy to help you with any questions you might have.


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