[ExI] Problem with Pattents

James Clement clementlawyer at hotmail.com
Thu Feb 28 17:41:43 UTC 2008

Stefano Vaj wrote:


There is another reason. Once a molecule is in the approval phase in any
jurisdiction, your ability to obtain a patent is over, since the invention
is considered as divulged. Thus, you cannot wait the end of that process to
apply, not only because somebody else might file before you do, but because
your application would be void anyway.


U.S. patent laws differ from European laws in several respects, including a
"first to invent" rather than "first to file" rule.  Therefore, in the U.S.
you may publish or put your invention to commercial use for up to one year
and still patent it afterwards.  However, if you commercialize it first, you
will likely NOT be able to obtain a patent outside the U.S. for it.  See

35 U.S.C. § 102(b) requires that a U.S. patent application must be filed
within one year of any of the following three events:

1. The disclosure of the invention (by any person) in a printed publication
(probably includes public disclosures using overheads and slides, "video"
publications, trade literature);

2. The offering for sale (or sale) of the invention (by any person) - does
not include efforts to license patent rights to others; or

3. The commercial use of the invention (by any person) - called "public

To obtain protection in foreign countries (except for a limited exception in
Canada), an application must be filed in the U.S. before the invention is
sold or disclosed to the public.


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