An invention that has been known or used by others or described in a printed publication
is unpatentable subject matter and will be rejected during prosecution with a prior
art rejection. The U.S. currently has a one year grace period in which the inventor
may make disclosures during which the patentee must file a patent application. Many
foreign countries do not allow any grace period.
Examples of public disclosures include public use, public sale, a publication, a
patent or any combination of these. The disclosure does not have to be the exact
invention but anything obviously close will bar the applicant from receiving a patent
if it is before the one year time period.
The threat from a public disclosure that occurred before filing does not go away
once a patent issues. Any time during the enforcement period of a patent (20 years
from the filing date), any person can cite prior art to the United States Patent
and Trademark Office that they believe effects the patentability of the invention
and may request an ex parte re-examination of the patent. An ex-parte re-examination
may result in part or all of the claims being unpatentable and unenforceable.
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