You can sell your product for up to one year and then file a patent application with the United States Patent and Trademark Office. However, it isn’t recommended because someone else can easily steal your idea based on your marketing efforts.
Of course, nothing that you do for the first year of commercialization will prevent you from getting a patent. However, if someone else filed a patent application or marketed a product similar to yours, their activities can prevent you from getting a patent. Their activity is prior art to you. You can’t overcome the prior art unless you have proof that they received the information from you, which would be difficult, if not impossible, to prove.
Additionally, suppose you want to pursue patent protection in other countries. In that case, most other countries require that you file a patent application to establish patent pendency before you commercialize or publicize your invention.
Can I commercialize my invention before filing a patent application in the United States?
Before 2013, inventors used to be able to market their inventions or product and wait for one year before they filed a patent application. This one year used to be referred to as the one-year grace period. Suppose there was another person that copied your product after you. In that case, you could swear behind the other person’s activities so that their activities (e.g., sales or webpage) would not be prior art to your later-filed application. This situation is no longer the case in the United States.
In 2013, the AIA or America Invents Act was enacted, which modified the one-year grace period. You can still swear behind prior art for up to one year but only against people who stole your idea. You have to prove that this other person saw your invention and made it their own. They marketed their own version of your invention. Or, they filed a patent application based on what they learned when they saw your invention. Good luck trying to prove this.
Essentially, you’d have to prove that there was a chain of possession between you and this other person. The one-year grace period is now only good against collaborators. Besides that, practically speaking, you won’t be able to prove that any specific person in the general public knew about your invention and tried to steal your invention.
Can I file a patent application in foreign countries after commercializing or publicizing my invention?
You cannot commercialize or publicize your invention and then, after that, file a patent application if you want to pursue foreign patent protection. You must file a patent application, then commercialize or publicize your invention.
Most foreign countries require absolute novelty, which requires that the inventor cannot do anything to disclose the information to others before they file a patent application.
Now, you can file a foreign patent application after you commercialize or publicize your invention. However, you must have filed a patent application before commercializing or publicizing your invention.
Let me explain.
Typically, in the United States, most inventors would file a patent application (i.e., provisional patent application or nonprovisional patent application). After that, they would commercialize their invention. Within one year, they would file a foreign patent application. Even though they filed a foreign patent application after they commercialized their invention, that is fine. The foreign patent application would claim priority back to the first file US patent application. The filing date of the first filed US patent application would be attributed to the foreign patent application.