Key Takeaways

  • The patent published meaning refers to when a patent application becomes publicly available, typically 18 months after filing, regardless of whether it will ever be granted.
  • Published patents do not grant enforceable rights but provide notice to the public and can act as prior art against later-filed applications.
  • Granted patents provide enforceable rights, allowing the owner to exclude others from making, using, or selling the invention for the patent term.
  • Published applications can be valuable for licensing, competitive intelligence, and signaling innovation activity, even before a grant.
  • The USPTO’s role includes both examining applications for grant and publishing them to the public. Published applications may later be cited in inter partes review (IPR) or litigation as prior art.

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.

Why Patent Publication Matters

Understanding the patent published meaning is critical because a published application serves several important functions. First, it puts the public on notice that someone is seeking exclusive rights to an invention. Even if a patent is never granted, the published application itself becomes part of the public domain and may block later applications that claim the same subject matter.

A publication also signals to competitors what technology a company or inventor is developing. For startups or research-driven companies, this can attract investors, partners, or licensees who see potential in the pending invention. However, it is important to remember that publication does not equal enforceable rights. Until a patent is granted, the applicant cannot stop others from making or using the invention.

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.

Key Differences Between Granted and Published Patents

While granted and published patents often look similar, their legal implications differ significantly:

  • Enforceability: A granted patent confers legal rights to exclude others, while a published patent application does not.
  • Certainty: A granted patent has survived USPTO examination, while a published application may still be rejected, abandoned, or amended.
  • Impact on Industry: Published applications contribute to the prior art pool, meaning they can be used against future applications to show lack of novelty or obviousness.
  • Monetization Potential: Granted patents command higher licensing value, while published applications may still spark early negotiations if a company wishes to secure rights before grant.

This distinction often confuses the public, as both documents may carry similar identifiers, such as application numbers, inventors, and filing dates. But only granted patents include enforceable claims approved by the USPTO.

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.

Timing of Patent Publication

Most U.S. utility patent applications are published 18 months after the earliest filing date. This is a default rule under U.S. law, aligning with international standards established by the Patent Cooperation Treaty (PCT). Applicants may request early publication if they want the invention disclosed sooner, or non-publication if they do not plan to seek foreign patents.

For applicants, understanding the timing is important. Early disclosure may deter competitors or help establish a defensive publication. On the other hand, non-publication requests can preserve confidentiality until the patent is granted, but they come with restrictions if international filings are later pursued.

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

Published Patents as Prior Art in Litigation

Published patent applications are not just administrative documents; they play an important role in litigation and patent trials. Under both pre- and post-America Invents Act (AIA) law, a published patent application can serve as prior art as of its original filing date, not its publication date. This means an application can block or invalidate later-filed patents even before being granted.

In inter partes review (IPR) and other Patent Trial and Appeal Board (PTAB) proceedings, opposing parties often cite published applications to challenge the validity of existing patents. Therefore, once an application is published, it becomes part of the legal landscape that can influence enforcement and validity disputes.

Frequently Asked Questions

  1. What is the meaning of a published patent?
    A published patent means the USPTO has made the application publicly available, usually 18 months after filing. It does not guarantee a grant.
  2. Can I enforce a published patent application?
    No. Only a granted patent allows you to enforce rights. A published application merely discloses the invention to the public.
  3. Why are patent applications published?
    They are published to inform the public, foster innovation, and add to the pool of prior art that prevents others from patenting the same invention.
  4. Does publication affect my ability to license my invention?
    Yes. A published application can attract potential licensees by signaling innovation, though granted patents typically secure stronger deals.
  5. Can a published application be used against me in litigation?
    Yes. Published applications are considered prior art and may be cited to challenge the novelty or validity of later-filed patents.

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