Can I talk to investors or demo my product before I file a patent?
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In many of the world’s largest economies, a single public demo, pitch, or sale before you file can put your invention permanently out of reach. Even in the U.S., the safety net is shorter and narrower than most founders assume.
This piece answers some of the most common questions I get from clients around patent filing timelines and the interplay with nondisclosure agreements (NDAs).
At the most basic level, the safest sequence will always be to file a patent application first, and afterward discuss the technology with investors under NDA. Filing a well-prepared, relatively low-cost provisional patent application before going public with technical details preserves patentability in the United States and abroad.
But sometimes founders disclose their technology first, only to wonder after the fact whether they should have filed a patent application first, and whether it is too late to do it now. The good news is that often it is still possible to salvage a patent application even after a public disclosure, although depending on the nature of the disclosure, you may lose at least some rights with no way to get them back.
The patent filing clock
The patent system is a bargain between the public and the inventor. In exchange for a detailed blueprint for making and using the invention (i.e., the patent), the inventor receives a monopoly preventing others from making, using, selling, offering for sale, or importing their invention for a period of time. For this bargain to make any sense, the invention must not already be public. If it is, the inventor is not really giving the public anything it doesn’t already have, so why should the public give the inventor a monopoly?
U.S. patent law reflects this. It bars a patent if, before your effective filing date, the invention was “patented, described in a printed publication, or in public use, on sale, or otherwise available to the public.”
This is the statutory bar that founders often trip over. If the founder accidentally publicizes the invention in one of these ways, she can end up preventing herself from obtaining a patent. In effect, she “prior art-ed” herself.
Likewise, if the founder waits too long to file a patent application, another inventor may come along and file first. While the United States used to award the patent to the first to invent, even if a rival inventor filed first, in 2013, the U.S. became a “first-inventor-to-file” system, rewarding filing earlier.
Put simply, if two inventors file a patent application for the same (or similar) invention, the first to the patent office wins the race. It doesn’t matter which invented first, so delay is risk.
So before pitches and demos, it almost always makes sense to “plant your flag” in the ground by filing a provisional patent application; “provisional” in the sense that it is not immediately examined, but it is sufficient to establish the all-important “effective filing date” of the invention.
In this way, the founder obtains relatively low cost protection against the risk of delay.
What counts as a public disclosure (more than you think)
As we saw, a patent application should be filed before a public disclosure; otherwise, the patent office may ultimately reject a founder’s patent application.
Below are the types of triggering activities, in plain language, to avoid until after you have filed your patent application.
Printed publications. A journal article, thesis, conference abstract, a spec sheet or pitch deck posted online, a public GitHub repo, a Kickstarter page. “Printed” includes digital and can be a single accessible copy.
Public use. Demonstrating or using the invention in public without confidentiality obligations. A speed networking event, trade-show reveal, an uncontrolled beta, a field deployment anyone can observe.
On sale. A commercial offer to sell the invention once it is “ready for patenting.” Supply chain agreements, vendor contracts to supply prototypes, and contract discussions for supplying a product can all count! NDAs do not protect you here.
Otherwise available to the public. The catch-all Congress added for anything that makes the invention accessible to the public but doesn’t fit the first three. Speaking on a podcast, uploading a YouTube video, hackathon demonstrations, and Substack subscriber chats (let’s make new law together).
There is a narrow wrinkle that can save you. If a public disclosure is experimental in nature, it may not be considered prior art. But it’s a narrow, fact-specific exception and not a plan you should rely on. Marketing and commercial testing do not qualify, for example. If you find yourself needing to leverage this option, run (do not walk) to your nearest patent attorney; time is of the essence.
The U.S. safety net, aka the “one year grace period”
The United States gives a limited backstop: a disclosure made one year or less before your effective filing date is not prior art against your own inventions if the disclosure was made by you or someone who got the information from you.
This means that if a founder publishes, demos, or sells their invention, they generally have up to 12 months afterward to file a patent application in the United States. But treat it as an emergency net, because foreign countries (including ones where you might want to extend your patent rights) are not as generous.
The grace period seems simple, but you need to know the fine print. Here are the four most common mistakes new founders make in relying on the grace period:
Relying on it to protect against competitors. While the grace period shields your own disclosures, an independent third party’s separate work can still create prior art headaches depending on what you do or don’t do during that grace period.
Thinking you already won the race. If someone else independently files a patent application or publicly discloses first, the grace period may not save you.
Interpreting it as a worldwide standard. The U.S. grace period buys you absolutely nothing in foreign countries.
Believing the clock resets on each disclosure. The first one starts the 12-month window. Subsequent disclosures do not restart the clock.
The foreign patent trap
It is great that the United States allows inventors a grace period, but unfortunately most of the rest of the world does not. Instead, most countries enforce what is known as “absolute novelty”: any disclosure available to the public before your priority date destroys novelty, with only very narrow exceptions.
In practice, this means a founder publicly demoing an invention before filing a patent application will prevent patenting almost everywhere outside of the United States.
Below are the most common foreign jurisdictions I get asked about, and how they treat these disclosures:
Europe (EPC): Generally no grace period, with very limited six-month exception. Prior art includes everything made available to the public (by written or oral description, by use, or in any other way) before the filing date. The only exceptions (Art. 55) are a narrow six-month window for disclosure due to evident abuse against the applicant or display at an officially recognized international exhibition. A demo day, press launch, or sales call is not covered. Practical trap: The six-month window runs from the filing date of a full nonprovisional application in Europe (not your priority date / provisional application filing date), so taking advantage of a provisional application plus the Paris year before filing a PCT application would blow through the deadline even in the rare evident-abuse case.
Note: While the UK is not part of the EU, it is part of the EPC and is grouped together with other European countries.
China: Generally no grace period, with a limited six-month exception again only for narrow situations: a Chinese-government-sponsored or recognized international exhibition, a prescribed academic/technical meeting, disclosure without the applicant’s consent, and (added in the 2020 amendment, effective June 1, 2021) a first public-interest disclosure during a declared national emergency. Ordinary commercial disclosure is not covered.
Canada: 12-month grace period. Same practical trap as Europe: because the clock runs from the Canadian filing date, disclosing, filing abroad, and then using the full Paris year to enter Canada (directly or via PCT) can push you past 12 months.
Australia: 12-month grace period. Critical distinction from the U.S.: filing a provisional/priority application is not sufficient to trigger the grace period; the 12 months runs to the filing of an Australian complete application or a PCT application designating Australia. Same issues as Europe/Canada.
Japan: 12-month grace period (extended from six months). Two features distinguish it from the U.S. grace period. First, as with Canada and Australia, the grace period does not apply to a foreign priority application. Second, it must be actively invoked: a petition is required at the time of filing, and a document proving the disclosure must be submitted within 30 days from the filing date (for the PCT route, within 30 days of national-phase entry).
Korea: 12-month grace period. Again, the period runs from the Korean filing date, not the effective/priority date. Like Japan, it must be claimed procedurally: by default the applicant must state the intention to invoke it when filing and submit evidentiary documents to KIPO within 30 days of filing, though for applications filed on or after July 29, 2015, the claim can also be made later during prosecution for an additional fee.
South Africa: No general grace period, and arguably stricter than the EPC or China because there is no exhibition exception for patents. Caveat: South Africa is a non-examining jurisdiction, meaning once an application is filed, an application ordinarily proceeds to grant without examination for novelty or inventive step, so an application on a prematurely disclosed invention may still proceed to grant, but the patent is exposed to revocation (and reform is coming: a new Patents Bill is anticipated to introduce substantive examination and a novelty grace period, though it is not yet law).
One public demo, publication, or offer for sale before you file can forfeit European, Chinese, and other foreign patent rights the day it happens, permanently. Filing before disclosure, then using the 12-month Paris Convention window to file abroad, is what preserves those rights.
“But I only pitched U.S. investors”
Foreign novelty turns on whether the disclosure was public, not where it happened. A globally accessible website or a public U.S. demo can be prior art against a later international patent application filing.
What an NDA does, and what it does not
It is critical to put NDAs in place when discussing technology with potential investors and partners. They not only keep your innovations in stealth mode, but in doing so they also generally keep your discussions from being “available to the public” and triggering a loss of patent rights.
Confidential, NDA-protected technical diligence with investors or partners is typically not a public disclosure. And if confidentiality is airtight, it will protect foreign novelty too. But be careful here, a breach of an NDA will not restore patent rights in some countries.
Critically, an NDA does not protect against the “on-sale” bar. A commercial sale under NDA is still prior art, meaning a confidential supply or purchase agreement can start your 12-month clock. And the clock can start before ink even meets paper: a commercial offer to sell the invention can trigger the bar as of the date of the offer, not the date of acceptance or delivery. One important exception: paying a contract manufacturer to build your prototype, where you keep title to what it builds, is generally a purchase of manufacturing services, not an invalidating sale of the invention. It is possible to structure an agreement with a vendor to avoid the on-sale bar, but this is an area where you absolutely need an attorney. Do not rely on self-help.
It should go without saying, you must have your NDA reviewed by an attorney with experience in this area. The topic of NDAs warrants its own article (I have one in the queue), but for now, founders should know that issues like a leaky or unsigned NDA, disclosure to people not actually bound, or terms that permit onward sharing can leave a disclosure public in fact. And while a retroactive NDA can impose obligations on parties, it does not reset the clock for patent filing purposes once a genuinely public disclosure has already happened.
Selling equity vs. selling the invention
A distinction worth making. Selling equity to investors is not the same as selling the invention itself. Typical fundraising is not an “on sale” event. The bar is about commercializing a product, not a company.
The Founder’s Checklist
File before you reveal outside your org (ideally). Before a demo day, a published deck, a paper, a launch, or an offer to sell, file at least a provisional that actually describes what you will show. Then pitch, demo, and sell freely.
Slow down to take time with the provisional application. You only get priority for what you disclose in it, so it has to enable the thing you are about to reveal, including all of the details and implications you want to talk about.
Keep pre-filing talks confidential. If you must speak before filing, use a real NDA, share only what is necessary, and avoid anything that looks like a commercial offer to sell the invention.
Preserve the foreign window. Filing first starts your 12-month priority clock for filing abroad, the mechanism that keeps international protection alive.
Already disclosed? Move fast. The U.S. may still be salvageable within the one-year grace period; foreign rights may (or may not) already be gone. This is a same-week conversation with counsel, not something for your long-term to-do list.
Scrutinize anything being recorded. AI recording software is becoming more common. Be wary of these systems in general (do you know the relevant data processing agreement terms underpinning it?). Generally, avoid talking about your technology in the presence of these systems until after an application has been filed, unless you are booked up on the relevant data terms, how the system is trained, etc.
Author Note
Stephen G. Nagy is a patent attorney and engineer at Strain PLLC. If you have a pitch, demo, publication, or first sale coming up, the cheapest time to investigate IP protection is now. I help founders and technical teams decide what to file, and when, so a conversation does not quietly cost them their patent rights. Please feel free to contact me directly.
This article is general information, not legal advice, and does not create an attorney-client relationship. Patent law changes and applies differently to each situation; verify the current rules and consult qualified counsel before acting. Prior results do not guarantee a similar outcome.
Footnotes
[1] 35 U.S.C. § 102(a)(1).
[2] Leahy-Smith America Invents Act, Pub. L. No. 112-29, § 3, 125 Stat. 284, 285–93 (2011) (codified at 35 U.S.C. § 102). The first-inventor-to-file provisions took effect on March 16, 2013. Id. § 3(n).
[3] In re Hall, 781 F.2d 897, 898–99 (Fed. Cir. 1986) (a single doctoral thesis, cataloged and shelved in one university library, was a “printed publication”; “public accessibility” is the touchstone).
[4] City of Elizabeth v. Am. Nicholson Pavement Co., 97 U.S. 126, 137 (1878); MPEP § 2133.03(e). The experimental-use cases arose under pre-AIA law; the USPTO treats the doctrine as potentially applicable to applications examined under the AIA, but its scope under AIA § 102(a)(1) is not fully settled. See MPEP §§ 2133.03(e) (editor’s note), 2152.02©–(e).
[5] 35 U.S.C. § 102(b)(1).
[6] Under § 102(b)(1)(B), if an inventor publicly discloses first, a third party’s later disclosure or filing within the inventor’s grace year can shield the inventor against the new third party art.
[7] Convention on the Grant of European Patents arts. 54(2), 55(1), Oct. 5, 1973, 1065 U.N.T.S. 199. Note that the six-month window of Article 55 runs from the actual European filing date, not the priority date.
[8] Patent Law of the People’s Republic of China, art. 24 (as amended Oct. 17, 2020, effective June 1, 2021).
[9] Patent Act, R.S.C. 1985, c. P-4, s. 28.2(1)(a) (Can.). For a PCT national-phase entry, the Canadian filing date is the PCT international filing date.
[10] Patents Act 1990 (Cth) s 24(1) (Austl.); Patents Regulations 1991 (Cth) reg 2.2C (Austl.).
[11] Tokkyohō [Patent Act], Act No. 121 of 1959, art. 30 (Japan) (12-month period effective for applications filed on or after June 9, 2018).
[12] Patent Act, art. 30 (S. Kor.). Article 30(3), applicable to applications filed on or after July 29, 2015, permits the grace period to be invoked during prosecution (for example, during amendment or office-action response periods, or within three months of a notice of allowance) upon payment of a fee.
[13] Patents Act 57 of 1978 ss 25–26 (S. Afr.). Section 26 disregards only disclosures made without the applicant’s knowledge or consent and disclosures from working the invention in South Africa by way of reasonable technical trial or experiment.
[14] See South Africa: Trends and Developments, in Chambers Global Practice Guides: Patent Litigation 2026 (2026), https://practiceguides.chambers.com/practice-guides/patent-litigation-2026/south-africa/trends-and-developments.
[15] 35 U.S.C. § 102(a)(1); Helsinn Healthcare S.A. v. Teva Pharm. USA, Inc., 586 U.S. 123 (2019) (a commercial sale to a third party required to keep the invention confidential may place the invention “on sale”). A bare license under the invention, by contrast, is generally not a sale. In re Kollar, 286 F.3d 1326 (Fed. Cir. 2002).
[16] Pfaff v. Wells Elecs., Inc., 525 U.S. 55, 67 (1998) (bar applies once the invention is the subject of a commercial offer for sale and is ready for patenting); Medicines Co. v. Hospira, Inc., 827 F.3d 1363 (Fed. Cir. 2016) (en banc) (contract manufacturer’s sale of manufacturing services, where the inventor retained title to the manufactured embodiments, was not an invalidating commercial sale).
