Can you bypass the First-to-File patent system by publishing your invention?

In the U.S. patent law switched (in 2012?) from First-to-Invent (FTI) to First-to-File (FTF) system, joining a lot of other countries already under FTF. In the old system, if you invented something but DIDN’T patent it, you still had some rights to patent it later. In the new system, the first person to file gets the patent even if you invented it before them; in fact they can even steal your work(?)

Here’s my Q. It was a very strict requirement before that a patent application has to describe something that has NEVER EVER BEEN PUBLISHED ANYWHERE ON EARTH IN ANY PUBLICATION. Is this STILL true under First-to-File? In other words, say I’m too poor/lazy to patent my invention, but I at least want to make sure I can use it. Can I just publicize my invention, so then NOBODY can patent it? Then if someone tries to patent it then sue me, I could just say well your patent is invalid because I published it before you patented it?

Can I assume that the MORE professionally I publish my invention (and the MORE places I publish it), the more protection I’d have? Like maybe a YouTube video and a post on my personal Wikipedia page (so trusted dates) would provide a little weight, but it would be better if I got it in a newspaper column or collegiate journal?

Thanks so much for any answers!!!

at first glance you would seem to be correct.

from a random website I googled.


In order for an invention to be patentable, the invention must be considered to be new or novel. This novelty requirement states that an invention cannot be patented if certain public disclosures of the invention have been made

however, you may be looking at this the wrong way. If you have not patented the thing yourself, then anyone can go ahead and exploit it’s potential (make money from it!) and you’d have no recourse at all. By publishing - you’re just giving them the detail they need :).

If you think it’s a good thing you’ve thought of - start the patent application.

Patent examiner in active speaking (I work for the European Patent Office). To begin with, in fact, almost anything can be used as prior art: in the Dutch patent office, in 1964 or thereabouts, an examiner used a Don Rosa “Duck Tales” comic as prior art to disqualify a patent application on a method to salvage sunken ships.

And you are right: if you disclose your invention in whatever way, it counts as prior art and nobody can get a patent on it. Of course, that also includes you. If later on you end up having the means to afford a patent… you are out of luck.

Also, your disclosure (be it by means of a patent -patents are publicly available documents, with a few exceptions usually related to military tech- or by you yourself publishing your own specs) can be used by a competitor to study it, analyze it, and come up with something that may well be basically your invention, but with some minor yet non-self-evident detail added… and then patent that invention (your original idea + the non-self-evident minor detail that adds some kind of technical effect -this last point is crucial), with full patent rights for him/her.

Of course, your competitor can do that as well if you get a patent for your original invention, but then at least you would have had the chance to enjoy a monopoly on it for some time.

Incidentally, part of the impetus for the US to switch from “First to Invent” to “First to File” was to curb some kinds of what are known as “submarine patents”. Some applicants were abusing the system. Also, priority in a “First to Invent” system is substantially harder to decide than in a “First to File” one. The latter simplifies matters vastly.

Let me guess: A chemical reaction which produces a gas, used to fill balloons affixed to the structure, and thereby buoy it to the surface? That one got made into an episode of the after-school cartoon.

You can publish your invention and still file for a patent, but there’s a one year time limit.

IIRC, this hasn’t changed since the FTF change.

As to someone else filing your published idea as a patent, that runs afoul of the requirement that the persons named on the patent are the actual inventors. (But, as noted, people “tweak” things all the time to get a new patent that sort of covers an old idea.)

While you can be 100% in the right on a patent issue, you will likely lose simply because it takes real money to win a patent challenge.

I’m guessing the ping pong ball trick

Yes, if you publish your invention then nobody will be able to patent it. If you just want to manufacture and sell your widget without worrying about getting sued but don’t want to patent it yourself then that’s fine.

Most patents have no economic value anyway.

And the threat of a competitor patenting an improvement on your invention is very real. This happened in the famous sewing machine patent wars.

It has been weakened in some ways with the American Invents Act and there is some uncertainty as not much case law has been created yet. Best practice is not to rely on the one year ‘grace period’ and to file for the patent before publishing.

Not Don Rosa, who wrote and drew great Donald Duck and Uncle Scrooge stories, but Carl Barks who wrote and drew even better ones.

Rosa was born in 1951 and had not, I’m pretty sure, had any duck stories published by then.

That was the one :slight_smile: I work in The Hague branch of the European Patent Office, in the Netherlands, and this story is one of the standard examples they taught us during our training to become examiners.

Whoops, my bad. Thanks for the correction! I am always mixing Rosa and Barks up; I can never remember who was artist before whom!

Philo Farnsworth was able to establish primacy for the invention of much of the technology on which television relied using a drawing he made for a high school science teacher when he was 16. It didn’t do him much good because RCA basically ignored his patents anyway.

Technically it doesn’t matter how much or where your invention is published. There are rules for what counts as publishing (I do know that blog posts and YouTube both count). But probably the best form of publishing would be as a published U.S. patent application. That is because if someone then submits another application trying to patent the invention, the Examiner first searches patents and patent application publications so the published patent application would be more likely to come up and the Examiner would reject the claims.

It would be less likely for the Examiner to find a YouTube video so the Examiner might miss the prior art and the invention would be patented. You would then have to challenge the patentability of the issued patent, such as in an inter partes review.

I wrote and prosecuted one application where the inventor posted a YouTube video of the invention prior to filing the application and it became prior art. I had a challenging time amending the claims so that they overcame the prior art rejection based on what was basically the invention itself.