Written By: Gabriella Fortugno (IP Lawyer), Seohyun (Haley) Koo (B.A., J.D., GPLLM.)
Many inventors, startups, and even established companies assume that sharing an idea “just to test interest” is harmless. In reality, any public disclosure made before filing a patent application can jeopardize patent rights in major markets.
What is “Public Disclosure”?
In patent law, a disclosure means making an invention available to the public in any form before filing a patent application. The key question is not how many people actually saw the information, but whether the information has been made publicly accessible.
Many activities that seem private or controlled can still count as public disclosures if no clear confidentiality obligations are in place. Examples of common public disclosures include:
- Pitching ideas at tradeshows or demo days
- Sharing concepts or technical details with potential investors
- Presenting at a conference
- Selling or offering to sell the invention
- Posting on a website or social media
- Sharing information during informal conversations where no confidentiality is expected
What is the Effect of Public Disclosure on Patent Rights?
Europe and China: Strict Rules, with Only Narrow Exceptions
In Europe and China, any public disclosure before filing destroys novelty of the invention. There is no grace period and no exception for accidental or unintentional disclosures.
Canada and the United States: One-Year Grace Period
Canada and the US have a 1-year grace period from the date of public disclosure. This means that if there is a public disclosure, the applicant has up to 12 months to file a patent application without losing patent rights in these jurisdictions.
While the grace period can preserve patent rights, it should not be relied upon casually. The grace period does not extend to most foreign jurisdictions, and can create practical complications such as:
- Disputes over what was disclosed and when
- Difficulty securing foreign rights
- Risk that third parties will file competing applications
For businesses seeking global protection, avoiding premature or unintentional public disclosure remains the safest strategy.
How NDAs Protect Patent Rights
A non-disclosure agreement (NDA) is one of the most effective tools for preventing unintentional loss of patent rights because it imposes obligations to keep the shared information confidential. When information is shared under an NDA, the disclosure is not likely to be considered “public”.
NDAs are useful in situations such as:
- Investor or partnership discussions
- Prototyping or manufacturing arrangements
- Consultations with marketing firms or designers
- Collaborations with research institutions
- Negotiations with potential licensees
By ensuring that all communication regarding the invention remains confidential, patent rights can be preserved before a patent application is filed.
Best Practices for Using NDAs to Protect Patent Rights
To reduce risk and maintain strong patent protection:
- Use NDAs early. NDAs should be signed before any meeting or discussion where technical details may be shared.
- Use NDAs with the right people. Employees are typically already bound by confidentiality obligations in their employment agreements. However, contractors, consultants, advisors, and other third parties should always sign an NDA before receiving any confidential information.
- Limit what you disclose. Even with an NDA, only share the information necessary for the discussion.
- File before disclosing whenever possible. A US provisional or regular patent application provides the strongest protection.
- Document all confidential interactions. Keep records of who received confidential information, when, and under what terms.
- Use enforceable NDAs. NDAs must be reasonable in scope and duration to be legally enforceable. Having a lawyer prepare an NDA template is a worthwhile investment to ensure the NDA provides meaningful protection to preserve patent and other IP rights.
If you have questions about NDAs, disclosure risks, or patent filing strategy, contact one of our experts today!
