I Have Been Selling My Invention – Can I Still Patent It?

The United States has what is called a one year statutory bar date – in normal English it means that if your invention becomes publicly known by making, selling or using it in a public manner, you have 12 months from the date that you first made it public to file your patent application. If you do not file within 12 months, you cannot file and will lose all of your rights.

There are some grey areas when determining if your actions would be considered “public” or “experimental,” but you should always err on the side of presuming your actions may be public. In fact, the Supreme Court recently ruled that even secret sales would start the clock.

Foreign Patents – Canada & Europe

The above may or may not apply to foreign countries that are typically more restrictive than the US. While Canada allows the 12 month window, most countries do not allow filing if you made your invention public before filing for protection. Thus, if you want protection in Europe, for example, it is important that you file in the US before you make the invention public. If you are in the development stage and using third parties, it is important that you impress upon them the need for secrecy, including non-disclosure agreements, to prove that you maintained your idea in confidence.

Your situation is unique

The above is a general overview and should not be considered legal advice as the above may not pertain to your specific situation. There are also some risks associated with relying on the one year bar date instead of filing immediately for protection before making your invention public, and the determination of what is or what is not “public” can be tricky. You are therefore encouraged to contact our firm, Kaufhold & Dix Patent Law, located in Edina, Minnesota and in Sioux Falls, South Dakota, so that our skilled practitioners can answer questions related to your particular circumstances.