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When to File for a Patent?

Why should one file before the first public disclosure or offer for sale?

Filing a patent application before the first public disclosure or offer for sale permits later filing in foreign countries. It also allows one to mark their product patent pending, which can provide a practical protection when introducing a new product into the market. Another advantage is that people often forget to file a patent application in a timely manner if they do not file the application before bringing the product into the market.

When must a patent application be filed before the first public disclosure or offer for sale?

Almost everywhere in the world, except the United States, a patent application must have a priority date before the first public disclosure. Filing a patent application in any country ascribing to the Patent Cooperation Treaty gives the priority date. One invention may have multiple priority dates.

Can one use a priority date from one country in a second country?

Yes. There are two common modes of claiming a priority date. First, a priority date can be claimed in the filing papers if the application is filed in the second country within one year of the priority date. Second, a PCT application can be filed which extends the time to file in other countries up to 30 months from the priority date and in some countries even longer.

What benefit is there to waiting to file a patent application?

One can wait up to a year after the first public disclosure or offer for sale to file a U.S. patent application. The principal benefit in waiting is to gain further understanding of the commercial viability of the invention before investing in patent protection. Waiting does risk forgetting to file and forever losing the right to obtain patent protection.

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