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Public Nature of Patent Documents

Public Nature of Patent Documents. 35 U.S.C. § 122 Patent applications “shall be kept in confidence.” But patent applications are published 18 months after the filing date, whether or not they may later issue.

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Public Nature of Patent Documents

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  1. Public Nature of Patent Documents 35 U.S.C. § 122 • Patent applications “shall be kept in confidence.” • But patent applications are published 18 months after the filing date, whether or not they may later issue. • A published application is “open to inspection by the public.” (37 C.F.R. 1.11; MPEP 103) • After publication, the patent’s file history is available on Public PAIR. (Some documents may be listed as NPL and will not be viewable until the patent issues.) JULIA KRIPKE - PUBLIC NATURE

  2. Exceptions to Publication: 35 U.S.C. § 122(b) Applications are NOT published at 18 months if they are: • No longer pending (i.e., issued or abandoned) • Subject to a secrecy order under 35 U.S.C. § 181 • Provisional under 35 U.S.C. § 111(b) • For a design patent filed under 35 U.S.C. § 171 • Not the subject of an application filed in a foreign country that requires publication of applications 18 months after filing (35 U.S.C. § 122(b)(2)(B)) • Under this final exception, the applicant must make a non-publication request upon filing its application with the PTO. JULIA KRIPKE - PUBLIC NATURE

  3. Why publish? • In the 1980s and 1990s, GATT (now WTO) and US groups, too, wanted HARMONY among world patent practices • The US used to keep patent applications secret until the patent issued. Most other countries, however, published applications after 18 months. • The publication rules were enacted as part of the American Inventors Protection Act of 1999 (AIPA), P.L. 106-113, Title IV, §§ 4001 et seq. • The AIPA was enacted on November 29, 1999. • The publication rules are in Subtitle E, the Domestic Publication of Foreign Filed Patent Applications Act of 1999. JULIA KRIPKE - PUBLIC NATURE

  4. When did the PTO start publishing? • Under section 4508 of the AIPA, the new rules apply to applications filed one year after the enactment of the legislation (i.e., November 29, 2000). • But the PTO published the first applications on March 15, 2001, which is only 4--not 18--months after November 29, 2000. • Explanation? Most likely, these “early” publications involved continuation, divisional, and continuation-in-part applications of applications filed prior to November 29, 2000, as well as voluntary publications. (PTO FAQ) JULIA KRIPKE - PUBLIC NATURE

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