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Losing the Right to Patent

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When is the Right to Patent Lost?

Sometimes, even if an inventor's invention meets the novelty requirements, he cannot patent his invention because he waited too long to file an application. This is called loss of right.

When Do I Have to File a Patent Application?

To avoid losing your right to patent your invention, you must file for a patent within one year after your invention becomes public knowledge.

When Does My Invention Become Public Knowledge?

Pretty much any time the public becomes aware of your invention and how to make it, it is considered public knowledge. It does not matter if only a few people know about of your invention, if you had no intention of making it public knowledge, or even if you were not aware it was public knowledge. Some common ways an invention becomes public knowledge are:

  • The inventor or a third party discloses it in any printed publication anywhere in the world.
  • The inventor or a third party begins selling it in the United States.
  • The inventor or a third party patents the invention in a foreign country.

Even if an invention is not technically public use, under certain circumstances, an inventor will still lose his right to patent. For example, a secret use by the inventor for a commercial purpose is considered a public use.

Are There Any Exceptions to the Loss of Right Rule?

An experimental use by an inventor is not a public use, even if it makes the invention available to the public. For example, using a new type of pavement on a public road to test its durability and usefulness when confronted with everyday wear and tear was not considered a public use because its purpose was experimental. However, if an experimental use is also commercial, it is more likely to be considered a public use.

Do I Need a Patent Attorney?

If you are considering patenting an invention and are concerned about loss of right, you should contact a patent attorney to help you through the patent process. An intellectual property attorney can help you navigate through the tricky waters of patent law.

Photo of page author Kristen Johnson

, LegalMatch Legal Writer

Last Modified: 10-16-2013 03:15 PM PDT

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