You cannot file a patent application if you wait more than one year after your first offer for sale, printed publication, and public demonstration (i.e., marketing efforts). You must file the patent application before the one-year grace period has expired. Also, many foreign countries require absolute novelty. This means that they don’t give you one year to market your invention. You must file your patent application before you start your marketing efforts.
Let’s discuss this in more detail below.
The United States gives you a one-year grace period
In the United States, the latest that you can file a patent application is one year after your first offer for sale, printed publication, or public demonstration. The one-year time frame is referred to as the one-year grace period. After one year, you will not get a patent for your invention. You have dedicated your invention to the public.
Even though you can file your patent application up to one year after the start of your marketing efforts, we do not recommend doing so. You are losing priority. Each day you delay filing the patent application, you lose one day of priority. If you file on the 365th day after the start of your marketing efforts, you’ve lost 1 year of priority. This means that others could have filed a patent application on a similar invention to your invention on the 364th day and their filing will block you from getting a patent.
Foreign countries require absolute novelty
If you are interested in securing patents in foreign countries, your patent application must be filed before you start your marketing efforts. This is called absolute novelty. You cannot do any marketing until after filing your application.
What are marketing efforts?
Marketing efforts refer to the things that you do to sell your product or service. These include offering your product for sale (i.e., offer for sale), building a web page for your product (i.e., printed publication), and posting a YouTube video on how your product works (i.e., public demonstration). These three things, namely, offers for sale, printed publications, and public demonstrations are what patent attorneys refer to as the bars to patentability. For the layperson, you can think of them as your marketing efforts.
Since they trigger the time period when an application’s filing is too late, let’s explain what each one means in more detail.
What is an offer for sale?
An offer for sale is any offer to purchase your product or service. Obviously, if you have the product in stock and offer it for sale to the public, that is a clear instance of an offer for sale. Note that an offer to sell is still an offer even if you were not successful in selling any product.
Also, cases in which engineering companies bid on a project to build a machine or building are still considered an offer for sale. This is true even though the machine has never been built before and the engineering firm must invent many new inventions to engineer and manufacture the machine.
The best way to ensure you don’t fall into this trap is to file a patent application within one year after you submit your bid on a project.
What is a printed publication?
A printed publication is a document that is disseminated to the public that would be interested in learning about your invention. The most common example is a website that you publish on the internet to sell your product. Or, the date that you list your product on Amazon or another online retailer. These listings are printed publications.
However, other more obscure postings could also be considered printed publications. For example, if you published your idea on a Kickstarter campaign, the listing is a printed publication. Any comments you put up on public forums or even members-only forums could also be considered a printed publication. You can read more about printed publications here: When is a document a “printed publication?”
What is a public demonstration?
A public demonstration is any sort of demonstration of your invention to the public. Also, demonstrations to specific buyers would also be considered a public demonstration.
Preferably, you should file your patent application before any outward marketing efforts. If you do tell others about your invention, you should do so under a nondisclosure agreement. Your outreach or disclosure to others outside of your company will eventually stop you from securing a patent.