What is a patent publication?
A patent publication is a published utility patent application which is not the same thing as a patent. While a published patent application may eventually issue into a patent, the patent publication consists of only the application itself, namely, the drawings and written specification. The patent publication does not provide information about events subsequent to the publication date, e.g., whether the application was approved. To determine the subsequent file history, you have to look up the application number at USPTO Public Pair.
How to identify a patent publication
The patent publication number of a US nonprovisional application will start with US and then the 4-digit year of publication, followed by an optional slash and then a six or seven digit number: USYYYY/#######. For example, you can identify this publication with the slash as US2017/0144722, or without the slash as US20170144722. A shortcut to recognize a publication is to notice the four-digit year after US. On the other hand, a granted US utility patent will start with US followed by a 7-digit or 8-digit number, such as US9815515 or US 9,815,515.
What is the difference between a patent and patent publication?
A published patent application serves a few purposes. First, patent publications serve as prior art against later-filed patent applications. This prior art effect applies worldwide. Even if the published application never gets allowed, the publication still serves as prior art against subsequently filed patent applications. It would be futile to argue that a published application should not count as prior art because it was never granted. It is the disclosure of the published application, and not the claims, that serves as prior art.
Second, published patent applications are accessible to the public as of the publication date. Third parties can monitor the progress of a published utility application, including Office Actions and the applicant’s responses.
Another difference between published applications and issued patents is the potential for infringement. You cannot infringe a pending application, but you can certainly infringe an issued patent. If a published application’s claims raise concerns about possible infringement, then it would be prudent to investigate the prosecution history to track the progress of application. Claim amendments made during the prosecution of the utility application may significantly change the scope of claims which would then affect the risk of future infringement. Amended claims in a published utility application may also shed light on possible design-arounds.
When do utility patent applications get published?
Generally, utility applications are published around 18 months from the priority date. This year and a half delay should be noted when you have a patentability search conducted. It is possible that prior art patent applications have been filed, but you cannot see them yet. If an application is complete (e.g., lacking English translation), the publication may be delayed.
Do all utility patent applications get published?
By default, utility nonprovisional patent applications will be published unless the applicant files a request for nonpublication with the initial filing of the application. The USPTO indicates the projected publication date on the filing receipt. Keep in mind that the USPTO began publishing utility applications in November 2000.
Design patent applications and provisional applications are not published. A provisional patent application may be made publicly accessible if they serve as domestic priority to a published nonprovisional application.
Should you request nonpublication?
Publication of your nonprovisional application is required if you want to file any corresponding foreign applications. If you are certain that the US is the only country where seek patent protection, then you want to consider filing a request for nonpublication at the outset if you do not want third parties to see your pending application.
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