The On-Sale Bar and Public Disclosure: How a Demo or Pitch Can Kill Your Patent Rights

Most founders know they should file a patent before they launch. Fewer realize that the pitch deck, the demo day, and the first paying customer can all start a clock, and in some countries can end the right to a patent entirely.

A founder builds something genuinely new. Before filing anything, they present it at a startup event, post a walkthrough video, send the deck to a dozen investors, and sign the first pilot customer. Everything about the company is moving in the right direction. Months later, someone suggests it might be time to talk about patents, and the answer from counsel is not the one the founder was hoping for.

That answer depends on dates. In patent law, when you told people about your invention and when you started selling it can matter as much as what the invention is. A disclosure that felt like ordinary momentum can be the event that limits or eliminates the protection the company was counting on.

This post explains how public disclosure and the on-sale bar work, which common startup activities trigger them, why the rules differ between the U.S. and the rest of the world, and what to do before you share anything about a new technology.

Why timing is part of patentability

To get a patent, an invention generally has to be new. If the invention was already public, or already on sale, before the filing date, the patent office can reject the application based on that earlier event. And the earlier event can be something the inventor did.

In the United States, the law provides a one-year grace period. An inventor's own public disclosure, sale, or offer for sale generally does not count against the application if the application is filed within one year of that event. That is the part founders tend to remember. What they tend to forget is how much sits outside that protection.

The grace period is a U.S. rule, not a global one. Many other major patent systems, including the European Patent Office, apply a much stricter standard that treats nearly any public disclosure before filing as a bar. A founder who disclosed the invention publicly and files only in the U.S. within the year may have preserved U.S. rights while giving up the ability to patent the same invention in Europe and elsewhere. For a startup with international plans, that is a permanent loss, not a delay.

The clock starts earlier than founders think. The one-year period runs from the first qualifying event, not from the moment the founder decides the product is ready. A conference talk in March or a pilot offer in April starts the countdown. Every month spent preparing the "real" launch is a month off the deadline.

Intervening disclosures can complicate the picture. The grace period offers some protection if a third party discloses the same subject matter after the inventor's own disclosure. But the analysis is fact-specific, and relying on it means building a patent strategy on a legal argument instead of a clean filing date.

What counts as a public disclosure

The word "public" does more work than most founders expect. A disclosure does not need to be a press release or a conference keynote. Activities that routinely create disclosure risk for startups include:

Demos and presentations. Pitch events, accelerator demo days, conference talks, webinars, and investor meetings where the technical approach is shown or described without confidentiality protection.

Pitch decks and investor materials. A deck that explains how the technology works, sent to investors who have not signed an NDA, can be a disclosure depending on who receives it and what restrictions apply. Many investors will not sign NDAs for early conversations, which makes the level of technical detail in the deck a real decision.

Online posts and repositories. A public GitHub repository, a technical blog post, a product video, a social media thread, or a preprint paper can all disclose how an invention works. Content posted online is often easy to date and easy to find, which is exactly what a patent examiner or a litigation opponent will look for.

Publications and academic activity. Papers, posters, theses, and conference abstracts, especially for founders coming out of research settings, where publication is the default and patenting is an afterthought.

Crowdfunding and public launches. A campaign page or launch announcement that describes the technology in enough detail for someone skilled in the field to understand it.

Beta programs and pilots without confidentiality terms. Letting outside users test a product without written confidentiality obligations can create a public use argument, depending on the circumstances.

Not every one of these is automatically a bar. The legal question is whether the disclosure was enabling and accessible to the public, and the answer turns on the details. But the safe assumption for a founder who wants patent rights is that each of these needs a deliberate decision before it happens.

The on-sale bar: you do not have to complete a sale

The on-sale bar surprises founders more than any other rule in this area, because it covers conduct that does not look like selling.

Under the U.S. framework, an invention can be barred if it was the subject of a commercial offer for sale and was ready for patenting at the time. Two features of that rule matter in practice.

An offer can be enough. A signed contract, a delivered product, and revenue are not required. A commercial offer to sell a product embodying the invention can trigger the bar, even if the product has not shipped and the buyer never pays.

Secret sales can count. The Supreme Court addressed this in Helsinn Healthcare v. Teva, holding that a sale to a third party who is obligated to keep the invention confidential can still trigger the bar. A founder who assumes that an NDA with the customer keeps the transaction outside the rule has misread the law. Confidentiality protects trade secrets and prevents public leakage. It does not necessarily stop the on-sale clock.

For startups, this means the first pilot agreement, a paid proof of concept, a purchase order, or even a priced proposal for a product that is built and working can start the one-year period. Founders often treat early customers as validation of the product. For patent purposes, they can also be a dated commercial event.

The "ready for patenting" element is flexible. It can be satisfied by a working prototype or by a sufficiently detailed description of the invention, so a company cannot avoid the issue by pointing to unfinished engineering.

Why the experimental use exception rarely saves you

Founders sometimes hear that testing an invention does not count as a public use or a sale. There is a narrow doctrine behind that idea, but it is hard to rely on. Courts look at whether the use was genuinely experimental, whether the inventor kept control over the testing, whether records were kept, and whether the activity looks commercial instead. A beta program that doubles as a marketing exercise, or testing by customers who are using the product for their own business purposes, usually does not qualify.

Treating "we were just testing" as a plan is risky. It works best as a fallback argument for a situation the company would rather have avoided.

What founders should do before sharing anything

File a provisional patent application before the first disclosure or offer. A provisional application is a relatively inexpensive way to establish an early filing date. It is not examined and does not become a patent on its own, and a non-provisional application must follow within twelve months to claim its benefit. But it locks in a date, which can preserve rights in jurisdictions that do not offer a grace period, provided the provisional adequately describes the invention. A thin, vague provisional gives a thin, vague priority claim.

Make a deliberate patent-or-trade-secret decision first. If the company decides to protect the technology as a trade secret instead of patenting it, disclosure discipline matters even more, because a public disclosure can end secrecy as well. That decision should be made before the demo, not after it.

Use NDAs where they work, and know where they do not. An NDA is valuable for protecting confidential information and preserving trade secret status. It is not a cure for the on-sale bar, and it does not make a public presentation private. Use them for investor, partner, and vendor conversations where confidentiality can reasonably be obtained, and limit technical detail where it cannot.

Audit what has already happened. Before filing, list every public talk, post, demo, repository, customer proposal, and pilot, with dates. The earliest event sets the deadline. Founders are often surprised by how early that date is.

Set internal rules for disclosure. Decide who can present technical details, what goes in decks sent to unsigned investors, and what gets published in repositories and blog posts. A short disclosure checklist reviewed before launch events can prevent most of the avoidable problems.

Coordinate patent timing with the fundraising timeline. If a raise, a major conference, or a product launch is coming, work backward from those dates. Filing before the event is far easier than explaining after the fact why rights in key markets are gone.

Frequently asked questions

Does presenting to investors count as a public disclosure?

It can, depending on the circumstances. A conversation with a single investor under a confidentiality obligation looks very different from a deck circulated widely with no restrictions. Because many investors decline to sign NDAs at the early stage, the practical approach is to control the level of technical detail you share and, if the invention matters, file a provisional application first.

Does the one-year grace period mean I have a year to decide whether to file?

Only in the United States, and only for the inventor's own qualifying disclosures and sales. It does not preserve rights in jurisdictions that require absolute novelty, and it requires the clock to be tracked from the earliest qualifying event. Treat it as a safety net, not a plan.

If my customer signed an NDA, does the on-sale bar still apply?

It can. The Supreme Court has held that a sale can trigger the bar even when the buyer is bound to confidentiality. An NDA remains useful for protecting trade secrets and information, but it does not reliably prevent a commercial offer or sale from starting the clock.

What if I already gave a demo or signed a pilot before filing?

Move quickly. If the event happened within the past year, U.S. rights may be intact, but the deadline is running and foreign rights may already be affected. Gather the dates and details of every disclosure and sale, and speak with patent counsel before the one-year mark approaches.

Is putting code on GitHub a disclosure?

A public repository can disclose how an invention works, and it is timestamped and easy to find. Whether it bars a patent depends on what the code reveals and when. If patent protection matters, decide before pushing core code publicly, and consider keeping the repository private until filing.

Does a provisional patent application solve all of this?

It helps substantially, but only if the provisional is detailed enough to support the claims you later want, and only if the non-provisional is filed within twelve months. A provisional drafted in a rush from a pitch deck may not support the patent you eventually need.

Patent rights are one of the few legal assets that can be lost by doing the things a startup is supposed to do: show the product, talk to investors, and land customers. The founders who keep their options open are not the ones who stay quiet. They are the ones who know the dates and make the filing decision before the first disclosure instead of after the last one. If you are preparing to launch, demo, or raise and want to protect your patent rights first, contact Ana Law to schedule a strategy session.