Destruction of Patentability Explained

Patentability is a concept at the heart of intellectual property law. Filing a patent application allows you to protect your ideas, but before you go through the time and expense of preparing and filing an application, you should check whether your invention is patentable. Certain situations lead to the destruction of patentability.

What Is Patentability?

The idea of patentability determines whether or not an invention is truly useful and new. There are several requirements that must be met before a company or individual can patent an invention. The invention must be novel; if it has existed in the market before or currently is on the market, it is no longer new. The invention must also be a non-obvious concept that is not apparent to those within the industry relevant to the invention. To qualify for a patent, an invention must have a clear and identifiable use or function.

Several different circumstances can cause destruction of patentability, rendering an invention or product invalid for protection by patent.

The One-Year Rule

One of the most common reasons that an item loses its patentability in the United States is the one-year rule. This is essentially a grace period that gives inventors time to develop and market a product before filing for a patent. Within one year of public use, sale, or an offer of sale, the inventor must file for patent protection. Once the one-year grace period has passed, the invention becomes public domain and is available to anyone. This rule is designed to allow inventors to test out a product before deciding whether or not it’s worth patenting.

You should also be aware that other countries, such as the European countries and China, do not have the same one year rule. Therefore, if you may wish to also file your patent application outside the United States at the appropriate time, your U.S. patent application MUST be on file prior to any public disclosure, use, sale, or offer for sale.

Existing Patents

If any patent exists for the item already, the product’s patentability is lost. Before filing an application, an individual can search for previous patents and published patent applications, both in the United States and abroad. As noted above, novelty and non-obviousness are requirements for patentability. A review of prior patents can help an inventor determine whether his or her invention is worth filing a patent application for.


There are numerous ways that a company can inadvertently destroy a product’s patentability through public disclosures. Publishing a description or diagram of a product in a trade journal, for example, may count as extensive disclosure, as can display at a trade show or the like. The same is true for design documents or sketches online for public viewing. Academic research or publication in academic journals can also render a product ineligible for a patent.

As an inventor, you know that your creativity is the foundation of your business. Protect your hard work with the help of OspreyIP. Call us at 615-523-9955 to schedule your initial consultation.

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OspreyIP, PLLC

Based in Brentwood, Tennessee, OspreyIP is a law firm that operates internationally to help clients file and prosecute patent applications, secure trademark registrations, and take steps to protect their intellectual property.

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