The Invent Blog® » Questions from readers…published patent applications vs. patents

Questions from readers…published patent applications vs. patents

December 10, 2004 on 4:17 pm | In Independent Inventors |

This morning I received a question via email.

I was wondering: what is the difference between a Published Patent Application and Patent. What longevity does a Published Application has before considered expired?

Good questions.

A pending patent application is typically kept secret. However, currently (unless you request otherwise) all patent applications are “published” 18 months (or earlier if you request early publication) after they are filed IF they are still pending. By being “published,” a pending patent application is laid open for public inspection (the public can see what was filed). Thus, a “published application” is a patent application that has been pending for 18 months and the Patent Office has “published” or made available to the public a printed copy of the application as filed.

A patent, on the other hand, is a grant of rights from the government giving you the right to exclude others from making, using or selling an invention. A patent is…an issued patent application. You cannot infringe a patent application, you can only infringe a patent.

>What longevity does a Published Application have before considered expired?

Published Applications don’t expire because they are not “enforceable” (you can’t infringe a patent application).

Again..good questions.

A related question is “why would you want the public to know the contents of your ’secret’ patent application via publication?” The answer is that changes to the US patent laws a few years back allow a patentee (the patent application must mature into a patent) to recover a reasonable royalty for not only the period of time AFTER issue, but also the period of time BETWEEN the date the patent application was published and the date the patent issued (provided that a number of other factors are met). The current “average” pendency of a patent application which matures into a patent is 27-28 months. Thus, theoretically, one could obtain an additional 9-10 months of back royalties from an infringer by having your application published.

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