1

We have a first to file system but as im learning someone can still knock your patent out if they can prove they had and worked on the idea longer. So this seem like it pushed you to disclose early. I heard if i disclose my invention publicly I'll have benefits one being i have a year to get a patent and now have the early disclose date. Is this true? As to counter that i also hear if i make my idea public before i have a ppa or non provisional ill lose all rights?

  • Depends on the country. Where are you. – Eric Shain Aug 7 '17 at 2:53
  • Lol sorry i left out that necessary detail. The U.S – DeusIIXII Aug 7 '17 at 2:53
  • “someone can still knock your patent out if they can prove they had and worked on the idea longer.“ Source? This seems to be wrong – DonQuiKong Aug 7 '17 at 6:55
  • 1
    I'll let the actual lawyers answer, but in essence, I believe you have a one year grace period in the US, but publishing will keep you from obtaining a patent in other jurisdictions. Pretty much everywhere has a first to file determination on who gets a patent. In general, you should really file before publishing. – Eric Shain Aug 7 '17 at 20:35
  • Thanka for the help. And don. The source was a penn state lecture i found about patent law. I'll see if i can refjnd the link. – DeusIIXII Aug 7 '17 at 21:41
2

Disclosures made by the inventor less than 1 year before the effective filing date is not prior art in the US (35 USC § 102(b)(1)). Accordingly, as long as the effective filing date (which can be the date of filing a provisional, where the benefit of the provisional is validly claimed in a subsequent non-provisional) is less than 1 year after such a disclosure, the disclosure is not prior art in the US for that inventor. It is, however, prior art for everyone else in the US.

However, it is still prior art in most other jurisdictions for the inventor. Notably, there are no such general grace periods in Europe or China. The disclosure would therefore prevent you getting a patent there.

Can someone still knock your patent out, if they can prove they had and worked on the idea longer?

No. Secretly working on something is not prior art, no matter how long they have done so. Prior art must be available to the public (35 USC § 102(a)).

This may, if the quite strict requirements are met, give rise to prior user rights (35 USC § 273), which can restrict the ability of a patent holder suing the prior user. However, this would not invalidate the patent.

| improve this answer | |
  • So if another person meet the requirments they can theoretically use the invention and it will be hard for me to sue TEHM but my patent is still intact to sue others for violating my patent? – DeusIIXII Aug 7 '17 at 23:51
  • 1
    @DeusIIXII Correct. – Maca Aug 8 '17 at 0:09
  • Thansk as always maca. – DeusIIXII Aug 8 '17 at 0:11

Your Answer

By clicking “Post Your Answer”, you agree to our terms of service, privacy policy and cookie policy

Not the answer you're looking for? Browse other questions tagged or ask your own question.