patent bar dates

WARNING OF BAR DATES

DO NOT RELY ON THE FOLLOWING EXPLANATIONS OF VERY COMPLICATED LAW FOR TIMING THE FILING OF A PATENT APPLICATION. READ IT AS A WARNING ONLY.

In order to prevent a patent from being ruled invalid during infringement litigation, it is essential that the United States patent application be filed before one (1) year has elapsed after any one of the following events has occurred:

1) public use of the invention;

2) an offer for sale of the invention; or

3) disclosure of the invention in a printed publication of general circulation.

Bay Area Intellectual Property Group IP (Bay Area IP), generally, cannot meet a bar date created by one of these events unless we have at least 60 days for preparation and filing of the application before one year has elapsed after any one of those events occurs. If an applicant has such a bar date pending, it must be disclosed to Bay Area IP in writing at least concurrent with the request for a cost estimate for patent preparation.

Statutory Bar

Under 35 USC §102(b), an applicant has one year from the date his invention is first offered for sale or publicly disclosed to file a patent application. This rule, unique to the U.S., is the most generous in the world. Foreign countries require that no public disclosure take place before filing. It is possible to file a foreign application from a U.S. application. However to do so, the U.S. application must be filed before any public disclosure or sale.

Patent prosecution is a very forgiving process in all aspects except for the "statutory bar." Thus, if you have any questions or comments concerning this aspect of patent law, please feel free to contact me. I do not charge for telephone consultations with inventors. I would prefer that an inventor call me if he or she has a question rather than remain silent for fear of incurring legal charges.

Please also note that your U.S. patent application must be on file within twelve months of the filing date of any provisional patent application. If you have already filed a provisional patent application, your U.S. patent application must be on file within twelve months of the filing date of your provisional patent application, or you lose your priority to the materials in the provisional patent application.

Although our U.S. patent laws protect the rights of the "first to invent," it is still a good idea to get your patent application on file as soon as possible. Over 90% of all patent interference proceedings are won by the party with the earliest filing date. Moreover, if you delay too long, you may be deemed to have "abandoned" your invention.