Updated October 16, 2020: 

A patent granted vs published depends on where in the patenting process a work lies. Patent applications are published before they are officially granted.

Published Patents

Published and granted patents look very similar, so they can easily be mistaken. Just because a patent application is published, it won't always be granted. Patent applications are published in order to make the public sphere aware of what is seeking patent protection. This means that, if the patent isn't actually granted to the work, the public can learn from the work anyway.

Basically, published patent applications keep others in the industry up-to-date on what kinds of new improvements and ideas are being worked on. This encourages innovation and moving forward throughout all industries.

Granted Patents

Patents which are granted are protected under law. If you have a granted patent, no other individual or company is legally allowed to benefit from the work in the following ways:

  • Manufacturing
  • Using
  • Selling or proposing to sell
  • Importing

Licensed manufacturers of the patented work can create, sell, use, and import the work under the rights given to them by the granted patent and license. Granted patents essentially hand the creators and manufacturers of a protected work a monopoly over that work for a set period of time.

Published patent applications for inventions do not give these rights to the creators of works, but simply say that the works might be protected in the future.

Patent License

If you do have a granted patent on an invention, a manufacturer might want to purchase the rights to create your idea through a patent license, but because the patent has been granted, this can cost the manufacturer lots of money. Sometimes, manufacturers will try to get licensed while the patent is still in the published application phase and not yet granted. This can save them a bit of money.

How the Patent Process Works

Even though it might seem better to have a granted patent versus a published patent application, the application phase can offer some benefits. This can be a discovery process to see how you might need to strengthen or adjust your patent to accurately protect your work. For instance, if the application specifies the size of your invention and another inventor works around that specification to copy without infringement, you now know that the language needs to be changed.

Granted patents cannot be changed or adjusted once they are official, so published patent applications offer some flexibility and room for learning. Once a patent is granted, the creator can file for a continuation to keep the patent in a pending state. At that point, a manufacturer can buy both a license to the granted patent and the pending application and can therefore have more room to experiment and improve the work while still being protected.

Having a published patent application can be a draw to those who might be interested in purchasing a license for your work because it shows that your work has potential. Once the patent is granted, future licensees can know for sure that the work meets all requirements for a patent and your claims of originality and usefulness are warranted. Licensees can take a risk with a patent application, but granted patents are a safer bet.

Published patent applications could possibly be abandoned by their original creators and therefore be worthless, so many licensees are not willing to take that risk.

What Role Does the United States Patent and Trademark Office Play?

Patent applications used to be kept a secret at the USPTO until they were officially approved and issued to the creator. In late 2000, the USPTO began publishing patent applications. This was a part of the GATT (General Agreement on Tariffs and Trade) that was an agreement signed by Bill Clinton six years prior, in 1994. This put the United States in the same boat with Japan and Europe which were already publishing patent applications.

Electronic versions of published applications can now be found on the website for the USPTO by searching their online database. This was the biggest change to the patenting system in the United States so far. This has caused a bit of confusion as many still confused published patent applications for granted patents.

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