One of the most common disconnects in the research-to-commercialization pipeline goes something like this: a scientist posts a manuscript on bioRxiv, continues developing the work, later submits a peer-reviewed manuscript, and only then contacts their Technology Licensing Office (TLO) because the research finally feels “ready” for patenting. By that point, however, the preprint may already have created a public disclosure that affects patent rights, well before the journal article is formally published.

Scientific readiness and patent readiness are different. Patent law does not require peer review, publication-quality data, or a completed research program before an application can be filed. Instead, Patent law asks different questions: What exactly was invented? Before the patent application was filed, had the same invention already been made available to the public? Even if no one had disclosed the exact same invention, would the claimed advance have been an expected or routine step for a scientist in the field based on what was already known? And does the patent application itself describe the invention in enough detail to support the protection being sought? In this context, “made available to the public” is much broader than publication in a peer-reviewed journal. A preprint, conference abstract or poster, public presentation, website, database entry, or other disclosure that people outside the research team can access without a confidentiality obligation may count. Understanding these differences can help researchers preserve patent options without unnecessarily delaying scientific publication.
 

What Counts as a Public Disclosure in Patent Law?

 

Why peer review has nothing to do with it

In science, “publication” often refers to a manuscript has been evaluated through peer-review by other scientists with relevant expertise and formally accepted and subsequently published by a scientific journal. Patent law uses a different lens. In patent law, “prior art” refers to any information that was already publicly available before the earliest filing date (i.e., the priority date) of an application describing the invention. For prior-art analysis, what matters is public availability, not whether the information was peer-reviewed or published by a scientific journal.

Under U.S. patent law, an invention can be affected by anything that was already publicly available before the patent application was filed. This includes things that were already patented, written up in a publication, used in public, sold, or posted online where others could access them. For example, an online preprint can count as a “publication” once it is publicly accessible. What matters is what the preprint actually teaches: it might already fully describe the same idea (which can prevent a later patent), or it might be one piece of information that, when combined with other known work, would make the invention seem like an obvious next step to someone skilled in the field.

This is why preprint timing matters. Researchers may view a bioRxiv posting as a preliminary version of the “real” publication that will come later. Patent law does not distinguish between “preliminary” and “final” scientific versions in the same way. Once a preprint is publicly accessible, it is treated as a public disclosure that may constitute “prior art”, i.e., information already publicly available that can be used to assess whether an invention is eligible for patent protection. In the United States, an inventor-originated disclosure (“inventor” referring to the individual (s) who conceived the invention and fully formed the inventive concept in their mind), may still fall within a one-year grace period before filing, but in many other jurisdictions, any public disclosure before the filing date can immediately affect patentability.
 

Conferences, social media, and every other channel

The issue does not stop at preprint servers alone. Any disclosure that makes technical information accessible to the public can potentially count as prior art. This includes posters and abstracts presented at conferences, slide decks, recorded talks, websites, online videos, data repositories, and even social-media posts. USPTO guidance on prior art recognizes that materials shared at scientific meetings or posted online may qualify as prior art when the information is publicly available and accessible to members of the public, for example, when others can reasonably find, view, or obtain the material.

Conference presentations can count as public disclosure for prior-art purposes when they publicly disclose information relevant to an invention before the filing date of a patent application. As a result, talks or posters presented at scientific meetings may affect later patent rights, even though many researchers who regularly attend conferences are unfortunately unaware of this consequence.

That does not mean that every conversation at a conference automatically destroys patent rights. Thus, it’s not all doom and gloom: context matters in practice. The analysis depends on the facts, including what was disclosed, whether the disclosure was public, and whether confidentiality restrictions applied. A confidential discussion under an appropriate confidentiality agreement is different from a poster displayed to conference attendees, a publicly available abstract, or a recorded talk posted online.

For life-science researchers and medical practitioners, public disclosure can include material posted to preprint journals such as bioRxiv, medRxiv, ChemRxiv, conference abstracts and posters, publicly available theses or dissertations, sequence or data repositories, laboratory or company websites, and social media posts or discussions. Yes, even you ambitious graduate students out there, enthusiastically sharing experimental ideas, methods, or research updates on blogs, TikTok, Facebook, or similar platforms, may be (inadvertently) placing technical details into the public domain that may constitute prior art against later-filed patent applications and potentially compromise patent protection. The safest practical rule is simple: if people outside the research team can access the technical details without a confidentiality obligation, speak with your Technology Licensing Office (TLO) and/or patent counsel before assuming the disclosure is harmless.
 

The U.S. Grace Period – and Why It Should Not Be the Filing Strategy

 

What the US one-year grace period actually protects

U.S. patent law gives inventors a limited one-year “grace period” for certain early disclosures. In simple terms, if an inventor publicly shares their own work (or someone else shares it after learning it from the inventor), that disclosure will not count against them as prior art as long as they file a patent application within one year of that disclosure.

For you scientists and researchers, this matters because it creates a narrow window where you can still publish, present at conferences, or share preprints without automatically destroying your ability to patent your work, but only if you understand the rules and act quickly. Outside that window, your own paper, talk, or preprint can become prior art against you, even if it was meant to establish that you were the first to report the discovery or to receive scientific credit for the work in the scientific community.

The key factors are timing and origin: the rule only protects disclosures that come from the inventor (or are derived from the inventor) and only if the patent application is filed within one year from the inventor’s first public disclosure of the invention.

For example, suppose a research team posts a preprint on March 1, 2026, describing a new therapeutic approach and later files a patent application covering that approach on February 15, 2027. The filing is within one year of the preprint, so the timing requirement may be satisfied. But timing is only part of the analysis. The applicant must also be able to establish that the subject matter disclosed in the preprint originated with the inventor or inventors named on the patent application. If the preprint instead includes claimed subject matter that originated independently with someone else, the grace-period exception may not apply to that subject matter. And if the application were filed after March 1, 2027, the preprint generally could not be removed as prior art under the one-year grace-period exception, even if the disclosure unquestionably originated with the inventors.

Even when the application is filed safely within the one-year period, however, establishing the required “origin” may not be as simple as it sounds. This is particularly important in academic research, where the people properly listed as authors on a publication may be very different from the people who must be listed as inventors on a patent application.

Authorship and inventorship are not synonymous concepts under patent law. A preprint or research manuscript may properly include numerous coauthors who are not inventors on a later patent application, and a difference between the author list and the inventor list does not, by itself, defeat the U.S. grace-period exception. Authorship generally recognizes individuals who performed experiments, collected or analyzed data, provided technical assistance, supervised portions of a project, or made other contributions to the publication. Inventorship, by contrast, turns on contribution to the conception of the subject matter actually claimed in the patent application.

Consider, for example, a preprint listing 20 authors that describes a new therapeutic for treating cancer. Several months later, the researchers file a patent application listing only five inventors. There may be a perfectly legitimate reason for the difference. The five inventors may have been the people who came up with the idea for using the therapeutic to treat cancer and worked out how the claimed treatment would operate. The other fifteen authors may have conducted experiments, analyzed data, provided technical assistance, or contributed in other ways that properly warrant scientific authorship but do not make them inventors. The mismatch therefore does not mean that the patent application has the wrong inventors or that the preprint necessarily constitutes prior art.

The practical problem is proving this distinction if the preprint is cited against the patent application. From the face of the preprint publication, the Patent Office may see a disclosure attributed to 20 people, while the patent application attributes the claimed invention to only five of them. It may therefore not be apparent that the relevant disclosure was the work of the five named inventors rather than subject matter contributed by one or more of the other fifteen authors. In that situation, additional evidence may need to be submitted, such as a declaration explaining the respective contributions of the authors and inventors, to establish that the subject matter relied upon as prior art actually originated with the named inventor or inventors and therefore qualifies for the grace-period exception.

This can turn what appears to be a straightforward one-year grace period into an evidentiary issue during patent prosecution. Instead of simply pointing to the publication date and showing that the patent application was filed less than one year later, it may be necessary to reconstruct who conceived the relevant subject matter, explain why additional authors appear on the publication, and provide evidence sufficient to establish that the disclosure being relied upon against the application was inventor-originated. The problem can be even more serious if the preprint describes an author’s contribution in broad terms, such as stating that the author “designed the studies,” while that author is not listed as an inventor on the patent application. An Examiner may view that statement as evidence that the author contributed to the invention and may refuse to accept a declaration or other evidence asserting that the disclosure originated solely with the named inventors. The applicant may then have to provide more specific evidence distinguishing the author’s scientific or technical assistance from contribution to the conception of the claimed invention.

For these reasons, relying on the grace period as a filing strategy, i.e., by first publishing a preprint or presenting at a conference and only later seeking patent protection, can be risky. Even when the patent filing occurs within one year, there may still be disputes over whether the disclosure falls within the statutory exception, and additional evidence may be needed to disqualify the publication as prior art. Public disclosure can also immediately affect patent rights outside the United States, where the same grace-period protections may not be available.

Even with the U.S. grace period, filing before public disclosure is therefore usually the better strategy. The grace period is best understood as a potential safety net when a disclosure has already occurred, not as a justification for intentionally delaying a patent filing.
 

Why the international picture is far less forgiving

Patent rules differ significantly from country to country. Importantly, many commercially important jurisdictions, including Europe and Japan, do not provide the same broad one-year grace period available in the United States for an inventor’s own public disclosure, such as a preprint. In those countries, making a preprint available online before filing a patent application can cause the preprint to be treated as prior art against the invention, potentially making the invention no longer eligible for patent protection.

For example, if a researcher posts a preprint describing a new therapeutic before a patent application is filed, that preprint may prevent the researcher from later obtaining patent protection for the disclosed therapeutic in certain countries, even if the researcher was the person who made the discovery and even if the patent application is filed only a few weeks or months later. Limited exceptions exist in some jurisdictions, but they vary considerably and should not be relied upon as a filing strategy.

A preprint that can potentially be overcome under the U.S. grace period may nevertheless result in the permanent loss of patent rights elsewhere. This is particularly important for therapeutics, diagnostics, research tools, engineered cells, biologics, medical devices, and other technologies for which patent protection may ultimately be sought in multiple countries.

For these reasons, when international patent protection may be important, the safest approach is to file a patent application before posting a preprint, publishing a paper, presenting the research publicly, or otherwise making the research publicly available.
 

What Researchers Should Do Before Posting a Preprint

 

TALK TO YOUR TLO FIRST!

The most important step is also the one most researchers skip: contact the TLO before posting the preprint, submitting the conference abstract, uploading the poster, or otherwise making the technical details public. The goal is not to stop publication. It is to give the TLO enough time to determine whether patent protection should be pursued first and, if so, what needs to be included in the filing.

If there may be something patentable, even a short pause before posting a preprint can make an enormous difference. Researchers do not need certainty about patentability before contacting their TLO. The TLO can quickly ask the critical questions: What was created? What appears to be new? What technical details are available? When time permits, the TLO can coordinate with patent counsel to conduct a patentability assessment. If filing is appropriate, or the timing is urgent, the TLO can also coordinate with patent counsel to prepare and file a provisional application (i.e., an initial placeholder application that establishes an early filing date without being examined), before the online post occurs. Patent professionals routinely handle urgent filings, including situations in which a researcher is scheduled to give a talk the next day, or a manuscript is about to be posted.

For example, imagine learning that a competing laboratory is about to publish work that overlaps with your own. Your first instinct may be to post your manuscript to bioRxiv immediately so that you are not “scooped.” Before doing so, contact your TLO. Depending on the circumstances, the TLO may be able to quickly engage patent counsel and arrange for a patent application to be filed before the preprint is posted. The preprint can then be posted after the filing, allowing the researchers to move forward with the scientific publication while also establishing a patent filing date for the invention described in the application. In other words, a short delay in posting the preprint may preserve important patent rights without meaningfully delaying publication.

The practical takeaway is simple: contacting the TLO before a preprint is posted can preserve options that may disappear once the preprint becomes public. Even a short amount of advance notice may give the TLO and patent counsel enough time to evaluate the invention and, when appropriate, file a patent application before publication. This does not necessarily require delaying the scientific work or unduly delays to publish. Rather, it allows the filing of a patent application and the scientific posting of a preprint to be coordinated so that researchers can share their work without unnecessarily putting potential patent rights at risk.
 

What if there is no TLO?

Not every inventor works within a university or research institution. Independent inventors can file patent applications directly with the USPTO, including provisional applications, and the USPTO does provide guidance and resources for self-filers. However, a provisional filing can create false confidence if it does not adequately describe the invention or fails to capture its full scope.

Although self-filing is possible and sometimes necessary, it is not always ideal, particularly for complex technologies where legal and strategic considerations can significantly affect the strength of potential patent protection. For this reason, when possible, inventors who expect to disclose commercially important work should consider speaking with a registered patent attorney or patent agent before any public disclosure occurs. Importantly, there are patent counsel and firms that work with independent inventors and early-stage startups at reduced cost or with flexible arrangements, making professional guidance more accessible than many assume, especially in biotechnology and other technically complex fields.

For start-up and small companies, the route to patent counsel may be different, but the timing principle is the same: involve IP counsel before the scientific or technical disclosure becomes public.
 

Questions We Hear Before Researchers File

 

Can a patent application still be filed after posting to bioRxiv?

Sometimes, yes. In the United States, a preprint may fall within the one-year grace-period exception if the statutory requirements are satisfied. But the key issue is timing and content: the date the preprint was posted and what exactly was described in the preprint. Outside the United States, a preprint article may already have eliminated rights in some jurisdictions.

If a preprint has already gone live, contact the TLO or patent counsel promptly. Do not wait for the peer-reviewed article. Your TLO and/or IP Counsel can assess what was disclosed, when it became public, what U.S. exceptions may apply, what foreign options remain, and whether additional technical disclosure is needed for a filing.

Does it matter if the preprint is revised or deleted?

Revising or deleting a preprint does not erase the fact that an earlier version was publicly accessible. The earlier version may remain available through the repository’s version history, web archives (e.g., the Wayback Machine), cached copies, downloads, or other evidence of public accessibility. Whether that preprint ultimately qualifies as prior art against a U.S. claim depends on the applicable patent laws, including any grace-period exception, but withdrawing the post does not reset the original disclosure date.

Researchers should therefore assume that preprints and other online postings cannot simply be “taken back.” Once it is on the web, it is there forever. If something important has already been posted, the correct response is to document the date and obtain patent advice quickly, not to rely on deletion as a cure.
 

Conclusion

Academic science rewards rapid communication. Patent systems generally reward filing before public disclosure. These goals do not have to be in conflict if the patent conversation happens early enough. A short discussion with the TLO or patent counsel before a preprint, abstract, poster, public repository deposit, or other disclosure can preserve options while allowing the science to move forward.

Three points to remember:

1. A preprint is a public disclosure in the United States that immediately starts the clock on subsequent patent rights. The U.S. one-year grace period can be valuable, but it is a safety net, not the filing strategy.
2. A pre-filing public disclosure can jeopardize patent rights outside the United States. Once a preprint is posted, it is treated as prior art in many jurisdictions and can bar patentability outright.
3. CONTACT YOUR TLO before you post to bioRxiv, ChemRxiv, medRxiv, TikTok, Facebook, conference websites, blogs, etc.

When research data have translational, clinical, or commercial potential, early patent guidance can make a meaningful difference. Reach out to PPG. We work with TLOs, research institutions, companies, and innovators to evaluate disclosure timelines, identify opportunities for patent protection, and develop filing and patent prosecution strategies that support both scientific publication and commercialization goals.