We come across several individuals who publish their work, and thereafter explore the option of patenting. Hence, we have penned down our thoughts on effects of publication on patenting.
Even before we delve into the topic, we would like to state the fact that, patent laws are jurisdiction specific, and varies from one country to another. The law in the US gives an inventor a period of 12 months from the date of such publication to apply for a patent. However, the law governing the patent system in India is significantly different.
In India, when the patent office examines a patent application, it tries to determine whether the subject matter intended to be protected in the patent application is anticipated or not. To determine anticipation, publications in India or elsewhere, which exist before the date of filing of the Indian patent application, are considered. In a scenario wherein the inventor himself has made a publication before filing the patent application, will still be considered as “prior art”. The inventors own publication would result in anticipation of the subject matter sought to be patented by his patent application, and a patent will be rejected.
Hence, it is advisable to apply for a patent before considering publication elsewhere, especially if you wish to seek patent protection in India and European countries.
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