When Must A Patent Application Be Filed?
Generally speaking, most countries require that a patent application be filed before any activity that makes the invention available to the public anywhere in the world, in a way that would enable a person of skill in the art to carry out the invention. (We call these “absolute novelty” countries.) This could include such things as an enabling pitch at a public event, an enabling demonstration at a shopping mall, or for that matter an enabling activity that may actually not be witnessed by a member of the public, but nonetheless available to the public with no obligation of secrecy. A remote use of a test prototype can conceivably be considered an activity that makes the invention available to the public, though efforts to secure the test site, for instance, might arguably disqualify a use of this type as one that is “available to the public”.
Canada provides a one year grace period to the inventor to file a patent application. The grace period is measured from the earliest such activity by the inventor (or someone who derives information from the inventor). Therefore, a Canadian application must be on file within one year of the date of the earliest such activity by the inventor, but before any such activity by third parties.
A similar grace period is available in the United States, which applies to the above described activities, as well as other public or non-public activities in which the invention may be used, but not necessarily in a manner to be accessible by a member of the public, and when the invention is ready for patenting. Further, secret business activities, for example that involve an “offer for sale” or some other commercial exploitation, may also start the one year clock running. Thus, it is advisable to work promptly and to file within one year of the earliest of any such activity, secret or otherwise. Activities more than one year from an effective Canadian or U.S. filing date will be scrutinized and rights may be lost if any of those activities fail to meet the requirements above.