When is a Patent Application Published (Pre-Grant Publication)?
Prior to the American Inventor’s Protection Act of 1999 (AIPA), patent applications were kept secret until they were issued. However, in view of AIPAs pre-grant publication (or “PGPub”) requirement, non-provisional utility and plant applications filed on or after November 29, 2000 are ”published after the expiration of a period of eighteen months from the earliest of: (1) the U.S. filing date; (2) the international filing date; or (3) the filing date of an earlier application for which a benefit is sought under 35 U.S.C. 119, 120, 121, or 365.” (see MPEP 1120 Eighteen-Month Publication of Patent Applications) Accordingly, upon satisfaction of one of the aforementioned conditions, the subject patent application is “published” and made public for anyone to view.
However, it should be noted that design patent applications and provisional patent applications are NOT subject to pre-grant publication. Additionally, a patent application is not published if it is abandoned (express abandonment) prior to publication or made the subject of a secrecy order.
Once a patent application has been published, it should be noted that the Patent Applicant may obtain damages for infringement that occurs for the period between publication and issue if certain conditions are satisfied.