I want to apply for two patents.

The first one is based on a journal article (obviously written by me) which is published a few months before.

My first question is: Is it legal/possible to apply for a patent based on an already published journal article? Is it a kind of self-plagiarism?

The second patent application which I am currently writing is based on a manuscript which I am planning to submit to a journal soon.

So, my second question is: Will it be a problem if I submit both the patent application and the manuscript to a journal at the same time? Should I write this to the journal editor?

My third question is: Is it unethical to keep the diagrams in the paper and patent almost the same?

  • 5
    You need to talk to a patent lawyer quickly. In many countries, you have to get (or at least apply for) your patent before publishing anything about it, so it may already be too late for the first one. In the US I believe you can get your patent up to one year after publishing, so that clock is ticking. Commented Jun 26, 2018 at 2:02

3 Answers 3


Self-plagiarism is not the issue. The patent documents an invention. It is not a creative work itself. You could just stick a cover letter on your paper and submit that, in theory (as a provisional patent anyway). In practice, everyone says a patent that is not carefully written by a lawyer will be worthless. Lawyers especially tend to say this. However, different countries have different rules regarding copyright on the images used. So you may not want to reuse them if you transferred the copyright to a journal.

Patents are required to be both non-obvious and novel. Your own publication can count as "prior art" proving your patent is no longer novel. This is also called a public disclosure, which usually means publishing or offering it for sale to others. Different countries have different laws regarding when you can patent something that has been publicly disclosed. The US gives you a year after publication. Many other countries give you no time; the idea can't be patented there after disclosure. Applying and submitting at the same time may work but you're right on the line there, so need to be careful in other countries.



also, patent laws vary by the country you invented and/or the country you are filing in. there are different patent law jurisdictions: national, PCT etc. The issue of filing for a patent starts with a priority date. Without knowing what country you want to focus on, it would be pretty difficult to give suggestions. But, why not engage a patent attorney in your country at this moment without any further delay?

In the U.S., a provisional patent gives you 12 months of time before a patent application is required, and you can abandon the process before you incur the large expense of the patent application if you think it will not work out. But you also have 12 months of time to claim priority providing some criteria are met.


This is why you don't write all the clever implementation details you have come up with in the paper you submit. If no new "inventive step" is added in patent then a previous publication describing everything in the patent counts as "prior art" which would reject the application.

You would usually not have enough space in a paper (at least not a page-limited conference paper anyway) to describe all the clever implementation details you come up with on the journey. The patent is the right place for those clever details.

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