Can a patent application be “kept secret” (i.e., “not published”) while it is examined at the USPTO?
Non-Publication Request
An Applicant may avoid pre-grant publication by submitting a “Non-publication request” with the patent application upon filing (this is a statutory requirement and CANNOT be waived). (see MPEP 1122 Requests for Nonpublication) However, if a non-publication request is submitted, the patent application must “not be the subject of an application filed in another country, or under a multilateral international agreement.” (see 1.213 Nonpublication Request).
International Filing after Submission of Non-Publication Request
If the patent application is filed internationally (outside of the United States) after the non-publication request has been submitted, the Applicant must notify the USPTO within 45 days after the foreign filing else the patent application becomes abandoned. If an abandonment is received for failing to notify the USPTO of a foreign filing as indicated previously, see 1.137(f) : (1.137 Revival of abandoned application, terminated or limited reexamination prosecution, or lapsed patent).
If an Applicant has not filed (or intends to file) their patent application internationally, a non-publication request may be competitively advantageous as it will allow the Applicant to withhold public exposure of the technology for an additional period of time. Conversely, once a patent application is published (and accordingly made public), competitors will likely have additional time to “design around” the technology described in the patent application as the 18 month publication date is considerably earlier than the average issue date. Additionally, the non-publication request will allow the Applicant to save some money by avoiding the publication fee (see USPTO Fees).