Many inventors have lost their patent rights long before they even filed their patent application. This is due to certain “bars to patentability” established by the USPTO. In this article, we will consider exactly what actions can bar a patent and how you, the patent applicant, can protect your invention from statutory patent bars.
What are Bars to Patentability?
Let’s begin by identifying three specific actions that can prevent you from getting a patent on your invention:
You have been selling the product for more than 12 months;
You have been offering to sell the product for more than 12 months; or
You have made public use of the product for more than 12 months before the date you filed for patent protection.
Keep in mind that conditional, one time and even non-profit sales can all bar a patent. Even if a product is offered up for sale and rejected by a potential buyer or if it is never delivered, a patent will be barred. Fortunately, there are ways to avoid these pitfalls.
How to Avoid Bars to Patentability
The best way to avoid bars to patentability and protect important patent rights is to file your patent application as soon as you possibly can. If you have sold your product, offered to sell it or made public use of the product recently, remember that your invention will not be considered “new” after 12 months and will no longer meet the requirements for patentability.
In addition, if, during the course of product development, you share information about the product in a document, it is of utmost importance you do so under a non-disclosure (NDA) agreement. A document protected by an NDA is not available to the public and is therefore unlikely to trigger a bar. Without an NDA however, the document may become available for public use and cause a patent bar.
Understandably, filing a patent application is quite complicated and time consuming. If you need help filing your patent application expeditiously, feel free to contact me as I will be delighted to assist you throughout the process.
Kelly G. Swartz is a patent attorney licensed to practice in front of the United States Patent and Trademark Office and in the state of Florida. She limits her practice to intellectual property law including patent, trademark, copyright, and trade secrets.