The difference between freedom to operate (FTO) and Patentability.
Publishing Your Invention Before Filing a Patent: A Critical Mistake Researchers Must Avoid
As part of our ongoing series addressing common issues in intellectual property (IP), we’ve previously discussed key tools for assessing novelty and freedom to operate (FTO) in the biotechnology field.
However, before diving into those technical assessments, it is essential to clarify a widespread and dangerous misconception: the difference between patentability and freedom to operate — especially when it comes to public disclosure of the invention.
This article focuses on one of the most critical (yet often overlooked) pitfalls: publishing your invention before filing a patent application — a legal misstep that can cost you your IP rights entirely.
What Happens If You Publish Before You File a Patent?
In the world of intellectual property, it’s not enough for your invention to be innovative or scientifically valuable — timing is everything. The legal timeline of your patent filing can be the difference between securing exclusive rights and losing your invention to the public domain.
If you publish your invention — for example, in a scientific journal or at a conference — before filing a patent application, you may irreversibly destroy your right to patent it in most jurisdictions.
There are no remedies in many cases. The loss can be permanent.
Why Is Pre-Filing Publication So Dangerous?
Because one of the key legal requirements for patentability is novelty — and novelty means your invention must not have been publicly disclosed anywhere in the world before your filing date.
Once disclosed publicly — even by you, the inventor — your idea becomes prior art, and may no longer be considered new.
While some countries (like the United States) offer a limited grace period — typically 12 months — during which you can file after public disclosure, many other regions (notably Europe, China, and most Middle Eastern jurisdictions) do not. In these jurisdictions, any prior disclosure kills novelty, even if it was made by the inventor themselves.
In Europe and China, even a self-authored scientific paper can destroy your own patent rights.
Even worse? You might not only lose the right to exclude others from using your invention — you may even lose freedom to operate (FTO) if your invention inadvertently infringes another patent that covers similar use or components.
3 Common Misconceptions Inventors Must Avoid
- “It’s okay to publish as long as I’m the author” —False. It’s still considered prior art and can destroy novelty.
- “I signed NDAs before disclosing” —Misleading. Disclosure under NDA may be protected in some cases, but relying on NDAs does not prevent loss of novelty if any public disclosure occurs.
- “I’ll fix it later” —Dangerous. Once novelty is lost, it cannot be restored retroactively.
How to Protect Your Invention Properly
Step 1: File First — Publish Later
Never disclose publicly until you’ve filed at least a provisional patent application. Even a simple provisional filing can preserve your rights.
Step 2: Avoid conferences, posters, and journals until protection is secured
Many researchers unintentionally destroy their patent rights by submitting to conferences or journals before consulting a patent attorney.
Step 3: Work with a specialized IP attorney
You need expert advice — not only on patent drafting, but on strategy and timing. For example, here at BAZAD, our IP law team helps researchers:
- Strategically plan the timing of publication and filing.
- Draft and file strong, technically accurate patent applications.
- Navigate legal risks in cases of accidental pre-filing disclosure.
- Conduct novelty and FTO searches to ensure both protection and market safety.
You can Book your Free 30-Minute Consultation
Discuss your invention and publication plans with one of our IP experts at:
www.bazad.net
Final Note
Don’t let one rushed publication cost you years of innovation. If you’re working on something patentable, treat timing as seriously as the invention itself.
“Innovators often focus on the ‘what’ — but smart protection comes from mastering the ‘when’.”
#IntellectualProperty #Patents #Novelty #FTO #IPLaw #InnovationProtection #ScientificResearch #BAZAD
