Patent rights are built on the concept of novelty — your invention must be new at the time you file. Once an invention has been publicly disclosed, it may no longer be eligible for valid patent protection in many countries. Understanding what constitutes disclosure, how priority dates work, and what happens if you delay can make the difference between securing strong protection and losing it entirely.
File before you disclose
The single most important rule in patent timing is to file your application before any public disclosure of the invention. In most jurisdictions around the world, any public disclosure made before the filing date can destroy the novelty of the invention, rendering it ineligible for patent protection.
This applies regardless of how the disclosure occurs. Whether the information was shared intentionally or inadvertently, the effect is the same — the invention enters the public domain and can no longer be considered "new" for patent purposes.
The safest approach is always to file before any public disclosure. Once novelty is lost, it cannot be recovered.
Filing a provisional patent application is often the most practical first step. It establishes your priority date, gives you 12 months of patent pending status, and allows you to continue developing and commercialising your invention while your rights are secured.
What counts as public disclosure?
Public disclosure is broader than many inventors realise. It is not limited to formal publications or product launches. Any of the following can constitute a novelty-destroying disclosure:
- Publishing details online — including on websites, social media, forums, or blogs
- Selling or offering the product for sale — even a single commercial transaction can count
- Demonstrating at trade shows or exhibitions — whether in person or virtually
- Presenting at conferences or industry events — oral presentations and poster displays included
- Discussing with investors, partners, or manufacturers — unless a confidentiality agreement is in place
- Crowdfunding campaigns — publicly describing the invention to attract funding
- Academic publications or theses — publishing research papers that describe the invention
The critical point is that confidential disclosures — those made under a binding non-disclosure agreement (NDA) — generally do not count as public disclosures. If you need to discuss your invention with others before filing, always ensure a confidentiality agreement is in place first.
Grace periods: a safety net, not a strategy
Some countries, including Australia and the United States, provide a grace period — typically 12 months — during which an inventor's own prior public disclosure will not be held against the patent application when assessing novelty and inventive step.
Under Section 24 of the Australian Patents Act, information made publicly available by or with the consent of the applicant within the 12 months before the filing date of a complete application must be disregarded during examination. This can be a valuable safety net if disclosure has already occurred.
However, there are important limitations:
- Not all countries offer grace periods. Many major jurisdictions, including most European countries, China, and India, have strict "absolute novelty" requirements with no grace period. If you disclose before filing and later seek protection in these countries, the application may be refused.
- Third-party disclosures are not covered. The grace period only protects the applicant's own disclosures. If someone else independently publishes similar information before your filing date, that disclosure can still be cited against your application.
- International protection may be compromised. Even if the grace period saves your Australian application, relying on it may significantly reduce your options for patent protection in other commercially important markets.
Grace periods exist as a safety net — not as a substitute for filing before disclosure. Relying on them can severely limit your international patent options.
Priority dates and why they matter
When you file a patent application, you establish an official priority date. This is the date against which the novelty and inventive step of your invention will be assessed. Everything publicly available before your priority date forms part of the "prior art base" that examiners will search when evaluating your application.
The earlier your priority date, the less prior art can be used against you. This is particularly important because:
- First to file prevails. If two inventors independently develop the same invention, the one with the earlier priority date will generally have the stronger claim to patent protection.
- Technology moves fast. In competitive fields, even a few months' delay can mean that a competitor files first, or that new publications enter the prior art base and undermine your novelty.
- Priority carries internationally. Under international conventions, your Australian priority date can be used to establish priority in other countries, provided you file in those countries within the applicable time limits (typically 12 months for national filings or 30–31 months via the PCT route).
The cost of delay
Delaying a patent filing carries real and often irreversible risks. Every day between conceiving an invention and filing an application is a day during which:
- A competitor could independently develop and file for the same invention
- New publications or products could enter the public domain, narrowing the scope of protection you can achieve
- An accidental disclosure — by you, a colleague, or a business partner — could destroy novelty in jurisdictions without grace periods
- The commercial window for the invention could narrow, reducing the strategic value of the patent
Filing a provisional patent application is specifically designed to address these risks. It secures your priority date, allows you to use the "patent pending" designation, and provides a 12-month window to assess commercial viability before committing to the next stage of the patent process.
When is the right time?
The right time to file is when you can describe how your invention works in enough detail for a patent attorney to prepare a meaningful application. You do not need a finished product, a prototype, or a complete business plan. What you need is a clear understanding of the inventive concept — the technical problem being solved and how your invention solves it.
If you have reached that point, or if you are approaching any form of public disclosure, contact Patentec to discuss your timing and options. A brief initial consultation can help you determine the best filing strategy for your situation.