Whether you’re a company preparing to launch a new technology or you’re a solo inventor who has just created the next breakthrough product that will sell widely for millions of dollars, the temptation to share the news is strong. Inventors and companies may want to present the invention at a trade show, post about it online, seek investors, or find a manufacturer to produce it. However, these early disclosures—made in the excitement of a new invention—can have unintended consequences. In some cases, these public disclosures can jeopardize or even destroy patent rights, and as a result, third parties may be able to freely sell your new product or technology.

Public disclosures by inventors and companies can have a significant impact on patentability under U.S. patent law. These disclosures may later be used as prior art that can prevent their own patent application from being issued as a patent. Under 35 U.S.C. § 102, prior art generally includes any information that is made available to the public before the effective filing date of a patent application, including information made available to the public by the inventor. Following the Leahy-Smith America Invents Act, the United States adopted a first-inventor-to-file system, which places increased importance on filing patent applications before making public disclosures. As a result, understanding what constitutes a public disclosure has become increasingly important for both inventors and businesses.

One of the most common forms of prior art is a printed publication, like academic journal articles, conference papers, books, technical manuals, theses, and white papers. A document does not need to be widely distributed to qualify as prior art; rather, courts consider the key question of whether a person of ordinary skill in the field could have located the reference with reasonable diligence. Even a single publicly accessible document, such as a thesis available in a university library or an online repository, may qualify as prior art.

In recent years, online disclosures have become increasingly prevalent. Publicly accessible content such as blog and forum posts, social media posts, online tutorials, online videos, and product documentation may all qualify as prior art. Courts generally evaluate whether the content was publicly accessible, whether the posting date can be established, and whether the material was searchable or indexed. Even informal technical disclosures made online may qualify as prior art if they were publicly available.

Public use of an invention may also bar patentability, even if the use is limited. For example, demonstrating a prototype at a trade show, using or testing a device in a publicly accessible setting, or providing a product to customers without confidentiality restrictions may constitute public use. Courts typically examine whether the use was accessible to the public, whether confidentiality obligations were in place, and whether the invention was sufficiently developed at the time of use. Even relatively limited public exposure can be sufficient to create prior art.

Commercial activity may also be prior art under the on-sale bar. This can include marketing the invention and offers for sale like formal sales agreements, product preorders, licensing offers, or commercial negotiations. The Supreme Court clarified the on-sale bar in Helsinn Healthcare S.A. v. Teva Pharmaceuticals USA, Inc., when it held that even confidential sales may trigger the on-sale bar. This decision underscores that commercial activity can create prior art even where the details of the invention are not publicly disclosed.

Thankfully, not all disclosures qualify as prior art. Confidential communications, internal company documents, private demonstrations conducted under nondisclosure agreements, and private emails generally do not count as public disclosures. However, as demonstrated in Helsinn, confidential commercial sales may still trigger the on-sale bar.

U.S. patent law also provides a limited one-year grace period for disclosures made by the inventor or derived from the inventor. This allows inventors to publicly disclose their invention and still file a patent application in the U.S. within one year. However, this grace period has important limitations. First, third-party disclosures not derived from the inventor may immediately bar patentability. Second, many foreign jurisdictions require absolute novelty and do not provide a comparable grace period.

Inventors and businesses should carefully consider what information is disclosed and when. Coordinating patent strategy with business, manufacturing, and marketing efforts can help avoid unintended public disclosures that can be considered prior art. When disclosure is necessary, confidentiality measures such as nondisclosure agreements are critical. Whenever possible, filing a provisional or nonprovisional patent application to establish your priority date before any public disclosure remains the safest strategy, particularly when seeking protection in foreign jurisdictions.

If you have any questions about how to preserve your patent rights for your new invention, don’t hesitate to reach out.