Patents - What Constitutes Public Disclosure?
Perhaps the simplest way to look at disclosure is to consider it as being an act which places the invention (or key aspects of it) in the hands of anyone (including the general public) who is under no obligation to keep it secret.
Even situations where someone could have legitimately discovered or seen the invention, regardless of whether anyone did or not, will still constitute public disclosure. Leaving inventions in unsecured areas with public access would constitute public disclosure. Keeping them in a private closed warehouse or workshop away from public viewing would not. Hence, make sure inventions in your workshop are not in public view.
Commercial use is generally regarded as a public disclosure. Hence sale, pre-sale, private viewings for the purpose of acquiring a sale, constitute public disclosure in most countries.
Some countries provide an exception for disclosures performed at certain conventions and exhibitions. However it is not wise to rely on these exceptions, other than as a last resort. Not all countries recognise these exceptions, and not all conventions and exhibitions are eligible for the exception.
Common sense generally prevails, as well as your actions to take reasonable precautions to prevent disclosure. As a guide, actions regarded as disclosure include:
Often the only exceptions are disclosures which were performed contrary to the wishes and intentions of the patentee. Unauthorised disclosures by a third party, or theft, are the typical acts falling within this exception. Though while your patent rights might be preserved (and there is generally an obligation to file for patent protection at the earliest possible opportunity after such an act), this can significantly interfere with planned development and commercialisation schedules for the invention, as well as alerting the competition to what you are doing.
Perhaps the simplest way to look at disclosure is to consider it as being an act which places the invention (or key aspects of it) in the hands of anyone (including the general public) who is under no obligation to keep it secret.
Even situations where someone could have legitimately discovered or seen the invention, regardless of whether anyone did or not, will still constitute public disclosure. Leaving inventions in unsecured areas with public access would constitute public disclosure. Keeping them in a private closed warehouse or workshop away from public viewing would not. Hence, make sure inventions in your workshop are not in public view.
Commercial use is generally regarded as a public disclosure. Hence sale, pre-sale, private viewings for the purpose of acquiring a sale, constitute public disclosure in most countries.
Some countries provide an exception for disclosures performed at certain conventions and exhibitions. However it is not wise to rely on these exceptions, other than as a last resort. Not all countries recognise these exceptions, and not all conventions and exhibitions are eligible for the exception.
Common sense generally prevails, as well as your actions to take reasonable precautions to prevent disclosure. As a guide, actions regarded as disclosure include:
- public display or use of an invention;
- publication of details of the invention;
- commercial use of the invention, even if secret;
- sale or advertising for sale of the invention
- pre-sale of the invention
- testing in public
- disclosure or showing the invention to any party not under an obligation of confidentiality
- sale of a product containing the inventive portion, even if the public might not know it is contained within
Often the only exceptions are disclosures which were performed contrary to the wishes and intentions of the patentee. Unauthorised disclosures by a third party, or theft, are the typical acts falling within this exception. Though while your patent rights might be preserved (and there is generally an obligation to file for patent protection at the earliest possible opportunity after such an act), this can significantly interfere with planned development and commercialisation schedules for the invention, as well as alerting the competition to what you are doing.
