Publish Your Patent Application ... or Not.
Below is a MRR and PLR article in category Reference Education -> subcategory Legal.
Should You Publish Your Patent Application?
Overview
Deciding whether to publish your patent application involves understanding the process, benefits, pitfalls, and ways to speed up examination. Here’s a clearer look at the considerations.
Infringement and Provisional Damages
You can't take action for patent infringement until your patent is officially issued. However, publishing your application can allow for provisional damages between the publication and issuance stages. After issuance, infringements could lead to treble damages and attorney fees. Before that, only reasonable royalty damages apply. Importantly, your claim must remain substantially identical from publication to issuance.
Provisional damages require both publication and actual notice to the infringer, meaning you need to detect infringement and inform the alleged infringer about your application.
Why Consider Early Publication?
To speed up the process, you can request early publication of your patent application, resulting in publication within four months. Two key times to consider this are:
1. When You File Your Application: Maximize the published time available.
2. Suspected Infringement: If you have evidence of infringement, you can file a petition to "make special" and potentially expedite the examination of your application, leading to the benefit of provisional damages with higher award potential post-issuance.
Benefits of Non-Publication
Keeping your application unpublished creates an element of uncertainty for competitors. Marking your invention as "Patent Pending" claims a formal application is in process without revealing specifics. Before publication, competitors are left guessing the true scope of your claims, even though they won't know the finalized claims until the patent is issued.
Risks of Non-Publication
Since the American Inventors Protection Act of 1999, inventors can choose secrecy, provided they don't file abroad or under international treaties like the Patent Cooperation Treaty. Filing internationally while keeping the U.S. application secret can lead to abandonment unless the non-publication request is rescinded within 45 days of filing abroad. Therefore, exercise caution with non-publication requests.
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Disclaimer: This article is for informational purposes only and is not a substitute for legal advice. Consult with a qualified attorney regarding your intellectual property needs.
For more information, visit [Williamson Intellectual Property Law](http://www.trwiplaw.com).
© 2006 Williamson Intellectual Property Law, LLC. All rights reserved worldwide.
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