Since March of 2001, the USPTO has been publishing utility and plant patent applications eighteen months after their filing date. Any utility or plant application filed on or after November 29, 2000, will automatically be published. In exchange for publication of a patent application, patentees may be able to obtain a reasonable royalty during the period beginning on the date of publication of the application by the USPTO and ending on the date the patent is issued (“provisional rights”).[1] The applicant can avoid publication by filing with the application a request certifying that the invention disclosed in the application has not and will not be the subject of an application filed in another country, or under a multilateral international agreement, that requires eighteen-month publication.[2] The Patent Office has created form PTO/SB/35 to request non-publication. There is no provision to accept this request after the filing date of the application, as the requirement for any request for non-publication to be made on filing is a statutory requirement. An applicant may rescind a non-publication request at any time. The Patent and Trademark Office has created form PTO/SB/36 to rescind a non-publication request. If an applicant who has made a non-publication request subsequently files an application directed to the invention disclosed in the application filed in the Office in a foreign country, or under a multilateral international agreement, that requires eighteen-month publication, the applicant must notify the Patent Office of such filing within forty-five days, or the U.S. patent application will abandon.
Published applications are electronically searchable on the Patent Office website: http://www.uspto.gov). Once the application is published, the public can also obtain a copy of the prosecution history of the application.
[1] 35 U.S.C. 154(d).
[2] Countries that do not require publication at 18-months currently include Algeria, Belarus, Belgium, Iran, Iraq, Kazakhstan, Malaysia, Mongolia, Morocco, Philippines, Saudi Arabia, Syria, and Vietnam.