US Patent Law – The One Year Rule

The purpose of this piece is to examine the sometimes baffling, frustrating, and somewhat unfair, aspects of what’s called the “One Year” rule when it comes to obtaining a patent for an invention.

Basically, patent law is kind of funky. It’s not easy to get a patent, and this is deliberate. Consider that patent attorneys make a median income of about $187,000. (http://www.oppedahl.com/opportunities/#money). Like the pharmacist said, “I didn’t go to school for six years to learn how to count to thirty.”

Even in what seems like a straightforward situation, obtaining a patent for an invention is a complicated undertaking. Let alone that there is an odd rule associated with it, one that can knock you right out of the ballgame before you even start.

According to United States patent law, a patent for an invention may be awarded to either a person or to a company provided that the invention to be patented has not been offered for sale for greater than a full calendar year before the patent’s application date. One wonders if leap years buy you an extra day, but it would cost too much to ask a patent attorney that question. If you know, email us.

The catch here is that this law is not just related to actual sales, but even “offers” to sell, i.e. advertising, or salespersons making sales offers, so if the invention as a product has been advertised or the product pitched, the one year egg timer has started and the sand is running.

If life and law were simple and straightforward, it would be nice if the filing of a patent application should precede any sales effort. Or better yet, if you had been selling the invention for any length of time and had no competitors yet.

However, life’s rules are imperfect, and sometimes a hot idea needs to hit the market ASAP, either because of fear of a similar invention lurking out there or just because the money from sales is needed for the financial survival of the individual or company.

As a result, you, as a patent seeking inventor, or any company with a product that deserves patenting, should fully appreciate and weigh carefully what it is that starts the sand running, because when the sand runs out, it’s over baby, and there’s no do-over.

So, what exactly is it that starts the one year countdown?

One thing that will do it is that there has been a sale, or an offer of sale has been made for the invention. This can be documented by either putting the sale offer in writing, in the form of a letter, or email we imagine, even. Or, by direct contact in the form of a meeting where the inventor shows drawings or diagrams and or a functioning prototype and makes an offer to another company or individual to sell them the invention. If either of these have occurred? The clock is ticking.

Another criterion is that the invention must be ready to be patented at the time the sale or sales offer occurs. This criterion is met if the inventor’s drawings at the time of the offer of sale or sale were of adequate detail and quality to allow the buyer or potential buyer to produce the invention.

For an invention to be deemed 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.” (http://www.uspto.gov/web/offices/pac/doc/general/index.html)

So, be careful and watch the calendar and your activities so you don’t jeopardize your chances of obtaining a patent.

PatentHelpNow.com is a website dedicated to providing inventors with free patent help. You can contact us at: PatentHelpNow@gmail.com