Intellectual Property FAQs

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Can I Lose the Right to Patent My Invention?

Can I Lose the Right to Patent My Invention?

One of the purposes of patent law is to ensure that the public reaps the benefits of inventors' work. The law therefore encourages inventors to patent their work promptly. Inventors should strive to patent their inventions as soon as it is reasonable to do so.

No matter how strong their rights when they create innovations, inventors may lose those rights if they do not pay attention to US patent law. Once those rights are gone, they cannot be regained. The primary ways inventors can lose their exclusive rights include publication, public use or sale, and abandonment.

Publication

If an invention is described in a printed publication more than a year before its inventor applies for a patent, the inventor will lose the right to the patent. The offending description must be clear and exact so that a person who is skilled in the area of the invention could duplicate it. A vague description of the invention will not adversely affect the inventor's rights.

If specific information concerning an invention is published, the inventor should make sure to apply for a patent within a year to retain his or her rights. It does not matter whether the publication takes place in the US or elsewhere.

Public use or sale

If an invention is used or offered for sale in the US more than one year before the inventor applies for a patent, the inventor loses patent rights. While the "on-sale bar" prevents the inventor from taking too long to claim patent rights, it also provides time to test the market for the invention and perfect its features.

Even if only one person knows of the public use or sale, and even if the inventor does not know of the public use or sale, the inventor can still lose patent rights. During the year in question, the invention must be functional rather than experimental.

Abandonment

Abandonment can occur in several different ways, but the essence of abandonment is that the inventor appears to have given up the intention to patent and exploit the invention. While an inventor may simply declare the intent to abandon the invention, more typically the inventor impliedly abandons the invention by unreasonably delaying the patent application, suppressing the invention or concealing the invention.

In this situation, there is no specific time limit on when inventors must file for patents. A factual analysis by the court will determine whether an unreasonable delay occurred. If the inventor abandoned the invention, the invention belongs to the public.

When an inventor purposely conceals an invention for an unreasonable time and another inventor applies for a patent on the same invention — having come up with the invention independently and in good faith — the second inventor will have the right to the patent.

Inventions do not need to be patented the second they are developed, but inventors must not unduly delay the process. If you have questions about preserving the right to patent an invention, please speak with an experienced intellectual property attorney.

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