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About Publication
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
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