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Analyzing Provisional Rights for Patent Applicants
With the passage of the Domestic Publication of Foreign Filed Patent Applications Act of 1999, the U.S. Congress instituted a pre-grant patent publication system. As a result, the USPTO must now publish domestic utility patent applications filed on or after November 29, 2000 within 18 months of their earliest priority date, unless conditions for preventing publication are met.
The pre-grant publication system, codified in 35 U.S.C. '122(b), does not apply to all applications. Provisional and design patent applications, applications that are no longer pending when due to be published, and applications that are subject to a secrecy order are excluded. In addition, an application will not be published if a nonpublication request is filed with it. The nonpublication request must certify that the invention disclosed in the application has not and will not be disclosed or claimed in a foreign patent application, or under international agreement, that requires publication 18 months after filing.
Patent applicants may, however, rescind nonpublication requests at any time. They may also voluntarily request early publication before the 18-month period or even republication of their applications after it. See 37 C.F.R. '1.221 (setting forth requirements for republication). As an incentive to publish and as a check on potential abusers of the pre-grant publication system, Congress gave patent applicants provisional rights in their published patent applications. Under 35 U.S.C. '154, inventors have the right to obtain a reasonable royalty from anyone who, between publication and the patent's issuance, makes, uses, sells, offers to sell, or imports into the United States the invention as claimed in the published application.
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