Patentability

Non-Prejudicial Disclosures

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11 May, 2021

In general, any public disclosure by any person before the filing date (or the priority date if priority is claimed) of a UK or European patent application can be cited as “prior art” when assessing novelty and inventive step. Prior art typically includes published patent documents, scientific papers and information available on the internet, but can also include evidence of prior use. It is therefore essential that a patent application for a product is filed before the product is publicly disclosed. If an applicant discloses their product, such as in marketing material, before filing a patent application, then their own disclosure can be cited as prior art and may render their patent application lacking in novelty or inventive step.

There are, however, two exceptions in which a public disclosure prior to the filing date of a UK or European patent application is disregarded when assessing novelty and inventive step. The first exception is any public disclosure that results from an evident abuse in relation to the applicant or inventor, such as by the disclosure being in breach of confidentiality or based upon unlawfully obtained information. The second exception is any display of a product at certain international exhibitions, provided that the applicant identifies this disclosure with their application and files a supporting certificate meeting certain requirements.

These two exceptions will only be applied if the UK or European application has a filing date within six months of the abusive disclosure or display at the international exhibition. The priority date is not taken into account. In order to benefit from these two exceptions a UK or European patent application should therefore be filed within six months of the disclosure, regardless of any priority claim.

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