Published Patents: Everything You Need to Know
Published patents document patents that have been submitted to the U.S. Patent Office but are pending approval. Once a published patent is approved, it becomes a granted patent. 3 min read
Published patents document patents that have been submitted to the U.S. Patent Office but are pending approval. Once a published patent is approved, it becomes a granted patent. There are many advantages to submitting a patent application, like establishing an invention as prior art, which will prevent a third party from filing for the same patent. Outlined below, you'll find details about the differences between published and granted patents and a filer might decide to publish an application.
Differences Between Published Applications and Granted Patents
It's easy to mistake a published patent application for a granted patent, but there are some formatting and language differences between patent applications and granted patents. For example, a granted patent lists the “Date of Patent,” and a patent application lists the “Pub. Date.”
If a patent is published but not yet granted, it has not been approved and cannot be enforced. However, patentees may receive royalties following the application's date of publication.
What Is a Patent Application Publication?
The patent application publication is an official record noting that a patent has been applied for. This establishes the contents of the patent application as “prior art” as of the date of the application publication along with some other benefits.
However, after filing a patent application, information related to the patent is no longer confidential. So the public can benefit from the knowledge listed in the patent, even if it is never issued. But this also exposes the information to competitors.
As of November 29, 2000, utility and plant patent applications will be published 18 months after the application date. However, there are some exceptions to this rule. For example, the U.S. Patent Office publishes nonprovisional patent applications 18 months after the earliest effective priority date. This is the filing date of either the current patent application or an earlier patent application, whichever came first. Moreover, a patent application can be filed within 12 months of an invention first being sold or disclosed. By taking advantage of this 12-month grace period, an inventor could have an application published within six months of the filing date.
Note that anyone can view the patent application's file history using Public PAIR. This listing includes the patent application, all related actions from the U.S. Patent Office, and all responses and amendments filed with the U.S. Patent Office.
The U.S. Patent Office requires a patent application if you have or intend to file a patent in a foreign country or file an international patent application for the invention. If the invention doesn't meet these criteria, then the patent applicant can choose whether to submit a patent application. If you do not want a patent application published, you must file a patent application that includes a nonpublication request.
Note that scientific papers take roughly one year to be published. If you release the text after filing a patent application, the paper will be published about the same time that the patent is granted.
The 18-Month Rule: Exceptions and Other Information
Though most patent applications are published within 18 months, there are some exceptions to this rule. For example:
- A filer can expedite the process by requesting early publication.
- A filer can file a patent application that includes a nonpublication request to keep the patent application from being published in the U.S.
- Provisional applications are not published.
- Continuation-in-part and divisional applications only take a few weeks to publish.
- The government can prevent publication for national security reasons.
In addition to these exceptions, most patent applications are published well before the 18-month delay. It takes the U.S. Patent Office a year from the filing date to publish most U.S. patent applications that it receives.
Reasons to Publish a Patent Application
Businesses and individuals typically submit patent applications in order to:
- Comply with U.S. law.
- Receive royalties for any activity that infringes on the invention. Businesses receive provisional rights for any infringements occurring between the patent's date of publication and the issue date.
- Keep competitors from developing similar inventions.
- Ensure that the patent application appears in patent searches.
- Establish an invention as prior art, which prevents third-party patent applications and related inventions from being approved.
- Receive recognition and official credit for an invention.
If you need help with published patents, you can post your legal need on UpCounsel's marketplace. UpCounsel accepts only the top 5 percent of lawyers to its site. Lawyers on UpCounsel come from law schools such as Harvard Law and Yale Law and average 14 years of legal experience, including work with or on behalf of companies like Google, Stripe, and Twilio.