What can I do if a potentially patentable invention has already been disclosed?

If a non-confidential disclosure of a potentially patentable invention has already been made by the inventor or another person, then the disclosure may well make it impossible to obtain valid patent protection, at least in the UK and Europe. Nevertheless, you should always seek professional advice before concluding that a valid patent cannot be obtained since, in some circumstances, it may still be possible to secure patent protection.

If a potential disclosure has occurred, we would investigate whether there were grounds to argue that the disclosure was actually in confidence, or was not sufficient to put the idea into the public domain. There may also be patentable aspects of the invention which were not disclosed.

Some countries, notably the United States, have a grace period and, in some circumstances, will discount disclosures made by the inventor within a certain period of time before the application was filed. Other countries have patent or utility model rights which discount disclosures made by the inventor outside that country. Yet further, many patent granting authorities, including the UK Intellectual Property Office and the European Patent Office may discount disclosures made in the six months prior to the filing date of the invention if they were made in breach of a confidence owed to the inventor.

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