What is “prior publication” and how it can kill your patent hopes

Under the Indian Patents Act, 1970, prior publication means that your invention has already been publicly disclosed in any form before the filing date (or priority date) of your patent application.

That disclosure—whether in print, online, or even as a presentation—becomes prior art. And if your invention is already “published,” it can no longer be considered novel, which is one of the key requirements for patentability.

Forms of Prior Publication

• Journal Articles & Research Papers: If you publish your work in a conference or journal before filing, it’s prior publication.

• Patent Applications: A published patent anywhere in the world counts as prior publication.

• Websites & Blogs: Posting your idea online—even on your own blog or LinkedIn—can destroy novelty.

• Product Launches & Demonstrations: Exhibiting or selling the product before filing is also disclosure.

• Presentations & Talks: Even a seminar or TED-style talk where you reveal the workings of your invention can qualify.

Why Prior Publication is Deadly for Patents

1. Kills Novelty – Novelty means your invention must be new. Prior publication proves it’s not.

2. Weakens Inventive Step – Even if slightly different, prior publication makes it easier for examiners to reject your invention as “obvious.”

3. No Second Chances – Once it’s in the public domain, you can’t pull it back and refile—it’s permanently prior art.

Example Scenario

• A researcher in Bangalore designs a new water purification membrane.

• Excited, she publishes a paper in an international journal.

• A few months later, she files a patent application in India.

• The Patent Office rejects it, because her own paper is considered prior publication against her patent.

Are There Any Exceptions in India?

Yes, but they’re narrow.

• Official or Notified Exhibitions: If disclosed at a government-notified exhibition, you may still file within 12 months.

• Learned Society Presentations: Presentations before certain recognized societies may be exempt if filed within 12 months.

• Unauthorized Disclosure: If someone else leaks your invention without consent, you may still have a case.

But these are exceptions, not loopholes to rely on.

How to Avoid the Prior Publication Trap

• File a Provisional Patent before any public disclosure.

• Use NDAs (Non-Disclosure Agreements) when sharing with partners, investors, or manufacturers.

• Coordinate Research & IP Teams in universities or startups so publication and patent filing go hand in hand.

Takeaway

Prior publication is one of the most common—and avoidable—reasons for patent rejection. In India, once your idea is publicly available before filing, your chances of securing a patent are effectively gone. The rule of thumb: patent first, publish later.