Skip to main content

Overview of Public Disclosure

Patent law places a fairly low threshold on what is considered a public disclosure. Although you can disclose some information about an invention (you can describe an invention without giving details), almost any disclosure without limitation or obligation of secrecy may constitute a public disclosure. 

The disclosures that will ultimately act as a bar to patentability must be "enabling"--that is, it must give enough information to someone "of ordinary skill in the art" to actually duplicate the invention. An invention is considered to be publically disclosed when it falls into one of these four broad categories:

1. It is described in a printed publication

Printed publications include commonly associated items such as book chapters, journal articles, and theses. But printed publications also include:

2. It is in public use

Distribution of research materials and prototypes that embody the invention, may constitute disclosure under certain conditions. If the materials are provided without any restriction on use or further distribution it may be considered to be made available to the public. If they are clearly provided only for testing and/or evaluation or for research purposes under written agreements clearly specifying the same, it would not be considered disclosure. 

3. It is on sale

A sale or an offer to sell a research material or prototype also constitutes disclosure and could establish a bar date for patent purposes.

4. It is otherwise available to the public

This is a new provision implemented under the American Invents Act on March 16, 2013. As this is a new statutory provision, it is unclear exactly how it will be implemented in practice. This provision may therefore expand the list of public disclosures in yet unforeseen ways.