If you have already shared your invention publicly, you may still be able to patent it.
In Australia, certain public disclosures made by you, with your consent or without your consent, may fall within a 12-month grace period. However, disclosure can affect patent rights in other countries, and confidential disclosure is different from making an invention public. If you have already disclosed your invention, avoid sharing it further and get patent advice as soon as possible
It can be unsettling when you realise you may have talked about your invention too soon.
Perhaps you showed a prototype to a potential customer, discussed the technology with an investor, presented it at an industry event or put something online before thinking about patents.
That doesn’t automatically mean your opportunity to obtain a patent has disappeared.
But what happens next depends on exactly what you disclosed, when you disclosed it, who received the information and where you may eventually want patent protection. This is one of those situations where timing is important
If you are still at the beginning of the process, our guide to what to do when you have an invention idea takes you through the practical steps before filing or sharing your invention.
Why does sharing an invention before patenting matter?
For an invention to be patentable, it generally needs to be new.
Patent lawyers call this requirement novelty.
Information that was already publicly available before the relevant patent filing date can form part of the “prior art” used when assessing whether the invention is new.
Importantly, that earlier disclosure can include your own disclosure. Public disclosure also does not mean ‘widely disseminated’ either – if information was there to look at by anyone, whether they searched for it or not, then it is considered publicly available.
Public disclosure can take many forms. You might have sold or demonstrated the invention, discussed it at an event, published a website and posted technical details online, or spoken with a potential investor or commercial partner without confidentiality arrangements in place.
Any of these situations may affect whether the invention is still considered new for patent purposes.
For that reason, the safest approach is usually to keep the invention confidential until you have considered your patent strategy and, where appropriate, filed an application.
In simple terms: file first, disclose second.
What counts as publicly disclosing an invention?
There isn’t a list that covers every situation.
A disclosure may be important if enough information has become available for someone to understand the invention and how it works.
For example, problems may arise if you:
- demonstrate a working invention at a trade show
- publish technical details on your website or social media
- sell or offer the invention for sale
- distribute samples without confidentiality restrictions
- present the invention at an open industry meeting
- explain the technical solution to potential investors without confidentiality arrangements.
IP Australia specifically recommends not demonstrating, selling or publicly discussing an invention before filing and not posting it online or on social media.
Example: Imagine you develop a new piece of mining equipment and demonstrate its new mechanism at an industry expo. Even though you invented it, that demonstration may amount to a public disclosure.
Compare that with privately showing the same equipment to an engineering company that has agreed to keep the information confidential. The legal position may be quite different
What if I only told an investor, manufacturer or business partner?
Sharing your invention with one person does not necessarily mean it was publicly disclosed.
If the recipient was under a genuine obligation to keep the information confidential, the disclosure may not form part of the public domain in the same way as an unrestricted presentation or website publication.
This is one reason non-disclosure agreements, or NDAs, can be useful when startups need to speak with prototype developers, manufacturers, researchers, investors and commercial partners.
Confidentiality agreements can help you share an invention more safely, but they are not a substitute for considering patent protection. If patent protection is important, confidentiality should form part of a broader strategy that also considers when to file. An NDA is not a substitute for a patent application.
A good IP strategy lets you collaborate without unnecessarily giving away the very asset you are trying to develop and monetise. In some cases, that also means deciding whether a patent or trade secret is the better way to protect the invention.
Does Australia have a patent grace period?
Yes.
Australia has a 12-month patent grace period that can protect certain disclosures made before a complete patent application is filed.
IP Australia states that the grace period can cover public disclosure made by you, with your consent or without your consent. A standard patent application generally needs to be filed within 12 months of the relevant disclosure for the grace-period provisions to assist.
So, for example, if you publicly demonstrated your invention three months ago, Australian patent protection may still be possible.
But this should be treated as a safety net, not a filing strategy.
It is best to think about your patent strategy before making the invention public, especially if you may want overseas protection, investment or commercial partners later. An early disclosure can narrow your options, so it is worth considering where the invention may go before you share it more widely.
IP Australia explains the 12-month grace period and what to consider before applying for a patent.
What about international patent rights?
This can often catch inventors by surprise as there is no single worldwide patent.
Patent rights are territorial, and different countries apply different rules about earlier disclosures. The Australian grace period therefore does not mean that your disclosure is harmless everywhere else.
IP Australia specifically warns that not all countries provide the same grace-period protection, which means public disclosure can restrict your options in overseas markets.
The World Intellectual Property Organization provides a useful overview of how to protect inventions through patents, including the importance of filing before public disclosure and understanding the rules that apply in different countries.
This is important – particularly for technology companies planning to:
- manufacture overseas
- export products
- licence technology internationally
- raise investment for global expansion
- enter markets such as Europe, Asia or the United States.
If overseas protection may be important, it is best to consider your international patent strategy before a public pitch, product launch, sample shipment or trade show disclosure. So even where an Australian patent may provide a pathway forward, an international filing strategy may need to be considered separately.
What should I do if I have already shared my invention?
The first step is not to panic. The second is to stop sharing it.
Write down exactly what happened:
When the valuable information may last longer than a patent
Note the date as accurately as possible.
Record what information you shared
Did you reveal the whole invention, or only the problem it solves? Keep copies of presentations, emails, website pages, photographs or documents.
Record who received the information
Was it a private discussion, an investor meeting, a public presentation or an online post?
Check whether confidentiality applied
Look for NDAs, confidentiality clauses, meeting terms or other agreements.
This is where a quick discussion with a patent attorney can really help. What you shared, who you shared it with and when it happened can make a big difference to what you can still protect.
Can an invention still be worth pursuing after disclosure?
Yes, absolutely.
Even if a disclosure creates difficulties for the original invention, that does not necessarily mean the project itself has no value.
Further development may produce new improvements, alternative mechanisms or technical features that were not part of the earlier disclosure.
A patent does not necessarily need to protect a completely unprecedented concept. In many cases, patentable inventions are useful improvements to existing technology.
A patent search may also help identify exactly what is new and where your strongest opportunity lies.
For startups, the invention is only one part of the commercial picture. The aim is to understand what you have, protect what is worth protecting and build a strategy around the business you intend to create.
Frequently asked questions about sharing an invention before patenting
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Can I patent something after posting it online?
Possibly. Australia provides a 12-month grace period for certain disclosures, including your own public disclosures. However, overseas patent rights may already have been affected, so get advice quickly and avoid further publication.
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Does telling someone about my invention destroy my patent rights?
Not necessarily. Whether the disclosure was confidential is important. A private disclosure under an appropriate confidentiality obligation is different from making the invention publicly available.
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Can I patent an invention after selling it?
Potentially in Australia if the disclosure falls within the relevant grace-period provisions and you act within the required timeframe. Sales before filing can nevertheless create significant patent issues, particularly internationally.
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Do I need an NDA before discussing my invention?
An NDA can be useful where confidential information needs to be shared before filing. However, it should form part of a broader patent and IP strategy rather than being treated as a replacement for patent protection.
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I disclosed my invention more than 12 months ago. Is it too late?
Patent protection for what was disclosed may be difficult or impossible in Australia, but the facts should still be reviewed. Later improvements or aspects that were not publicly disclosed may potentially raise different patent questions.
Get clear on your next step before sharing anything else
If you have already disclosed your invention, the important thing is to establish exactly what was shared and what options remain.
You do not need to arrive with the legal answer worked out. A short discussion can help clarify whether the disclosure was public or confidential, whether the Australian grace period may be relevant, what overseas rights need to be considered and whether later developments or improvements may still be protectable.
If you want to understand the Australian filing process first, IP Australia’s guide to applying for a standard patent sets out the main steps and filing options.
If you’re unsure how this applies to your invention, Patenteur can review what has happened and help you work out the most practical next step before you disclose, develop or commercialise it further.
