Public Disclosure

What is the 12-month grace period for patent disclosure?

Under Section 35 U.S.C. §§ 102(a)(1) & (b) of the US Patent Laws, an inventor who publicly discloses his or her invention obtains certain statutory rights. What is a public disclosure? A disclosure means conveyance of enough information that a person having ordinary skill in the arts is able to replicate your invention. Less information than that is not a disclosure under US laws. A disclosure is generally not considered public if it is disclosed under a confidentiality agreement or not able to be found (i.e., a thesis that is not indexed and not otherwise publicly available). An inventor who makes a public disclosure obtains the following statutory rights:

  1. The public disclosure counts as prior art against other filers and prevents someone from filing a substantially identical patent application;
  2. The public disclosure will not count as prior art against the inventor if the inventor files a patent application within a 12-month period before the effective filing date or priority date; and
  3. Overlapping subject matter disclosed by a third party within the same 12-month period is not prior art if the inventor had already publicly disclosed that subject matter.

It is important to note, however, that this grace period is 6 months in some countries and some countries only allow the disclosure period if the disclosure is in an officially recognized international exhibition. In some countries such a disclosure would prevent you from obtaining patent rights. The movement appears to be towards more countries adopting the 12-month grace period. We have compiled a country-by-country list of such laws. You can find it here.

What countries offer public disclosure?

We’ve put together a handy-dandy guide to help with just that!

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