Publication of a Patent Application

In order to comply with international patent treaties, the United States Patent and Trademark Office (PTO) is now publishing patent applications 18 months after the application's priority date. Your priority date is the filing date of your first-filed U.S. patent application. This means that, for most of our clients, 18 months after your provisional application is filed, your utility application's specification, claims, and drawings will be published, and as current technology permits, and available to the public on the Internet.

After your application is published, the PTO no longer keeps your application confidential at all. Anyone may request a complete copy of your application, including application-related documents such as office actions, appeals, and assignments. Your filing date, serial number, issue status, and all other information will be public. Your potential competitors will be able to see your entire patent application, probably quite some time before your patent would normally issue. However, you should keep in mind that your competitors are also required to publish at 18 months, so the playing field remains pretty even.

The 18-month publication process is required if you want to seek international patent protection via the Patent Cooperation Treaty (PCT), which is the best method for obtaining foreign patent rights for almost all of our clients. Under the PCT, you typically have 30 months from your first U.S. filing to file patent applications in most foreign countries. If you are not using the application requirements provided by the Patent Cooperation Treaty to file your foreign applications, then you must typically file any desired foreign applications in your desired foreign countries within 12 months of your priority date.

At this date, you have the option to instruct the PTO NOT to publish your application. If you are quite certain that you will never need patent rights in any foreign country, or if you have made very careful arrangements with a patent attorney to file all of your foreign patent applications in foreign countries within 1 year of your priority date, then you may wish to refuse publication in order to protect your application’s confidentiality until it issues.

UNLESS YOU INSTRUCT US OTHERWISE, YOUR APPLICATION WILL BE PUBLISHED 18 MONTHS AFTER ITS PRIORITY DATE.

Patent Misconceptions