In order for an invention to be patentable it must be new as defined in the patent law, which provides that an invention cannot be patented if: "(a) the invention was known or used by others in this country, or patented or described in a printed publication in this or a foreign country, before the invention thereof by the applicant for patent," or "(b) the invention was patented or described in a printed publication in this or a foreign country or in public use or on sale in this country more than one year prior to the application for patent in the United States . . ."
If the invention has been described in a printed publication anywhere in the world, or if it was known or used by others in this country before the date that the applicant made his/her invention, a patent cannot be obtained. If the invention has been described in a printed publication anywhere, or has been in public use or on sale in this country more than one year before the date on which an application for patent is filed in this country, a patent cannot be obtained. In this connection it is immaterial when the invention was made, or whether the printed publication or public use was by the inventor himself/herself or by someone else. If the inventor describes the invention in a printed publication or uses the invention publicly, or places it on sale, he/she must apply for a patent before one year has gone by, otherwise any right to a patent will be lost. The inventor must file on the date of public use or disclosure, however, in order to preserve patent rights in many foreign countries.
Even if the subject matter sought to be patented is not exactly shown by the prior art, and involves one or more differences over the most nearly similar thing already known, a patent may still be refused if the differences would be obvious. The subject matter sought to be patented must be sufficiently different from what has been used or described before that it may be said to be nonobvious to a person having ordinary skill in the area of technology related to the invention. For example, the substitution of one color for another, or changes in size, are ordinarily not patentable.
uspto.gov
CAN WE MARKET OUR INVENTION BEFORE APPLYING FOR A PATENT ?
Your company has a new product. You think you may pursue a patent eventually, but there are other concerns right now. Other concerns include further development and marketing of the product. In fact, other concerns may include the immediate survival of the company.
Can you delay filing a patent application? To answer this question, you should seek legal counsel now. Legal counsel can help you determine whether there is a deadline for filing a patent application, as discussed in more detail below.
For a patent application to succeed, the invention must be new within the meaning of the patent law. In other words, the invention must not be Prior Art. Prior Art is a term encompassing prior technology.
An item becomes Prior Art against a later filed patent application if the item is "on-sale" more than one year before filing a patent application. "A person shall be entitled to a patent unless. . . the invention was. . . on-sale in this country, more than one year prior to the date of the application for patent." 35 U.S.C. § 102 (b).
The term "on-sale" has a special meaning in U.S. law. No public disclosure of the invention is necessary for application of this "on-sale" provision; the entire structure of the product placed "on-sale" becomes Prior Art. The issue is not whether the marketing discloses the invention, but whether the marketing relates to a device that embodies the invention. Thus, in general, a confidentiality, or non disclosure agreement (NDA), will not prevent a finding of "on-sale."
This "on-sale" provision has been called a trap for the unwary, because it may apply to certain types of marketing even if no formal offer for sale occurs. Further, the "on-sale" provision may apply even if no product prototype exists.
The "critical date" is one year prior to the date of the patent application. The current state of the law is that an on-sale event occurs when two conditions are satisfied before the critical date. First, the product must be the subject of a commercial offer for sale. Second, the invention must be ready for patenting. The second condition may be satisfied in at least two ways: by implementation of the invention, or by drawings or other descriptions of the invention sufficiently specific to enable a person to make the invention.
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