What is a Patent Application Publication?

Patent application publications confuse a lot of people — including some businesses that mistakenly believe a competitor’s published application means an issued patent already exists. Understanding the difference between a published application and an actual patent is important, whether you’re monitoring competitors or tracking the status of your own application.

What a Patent Application Publication Is

The USPTO automatically publishes most patent applications 18 months after the application’s priority date. This is true whether the application was filed as a utility application directly, or whether it claimed priority to an earlier provisional application — the 18-month clock runs from the earliest priority date, not the filing date of the utility application.

A patent application publication looks very similar to an issued patent to the untrained eye. But it is not a patent. It is simply a public record that someone has filed a patent application. The claims in a published application have not been examined, have not been allowed, and may never issue as a patent. The application could still be rejected, abandoned, or significantly amended before — if ever — a patent issues.

How to Tell the Difference

There are two easy ways to distinguish a published application from an issued patent:

• The title on the first page: A published application says “United States Patent Application Publication” in the upper left corner. An issued patent says “United States Patent.”
• The document number: Published applications have a number beginning with the year of publication (e.g., US 2024/0123456 A1). Issued patents have a sequential number — currently eight digits, as the USPTO crossed the 10 million mark on June 19, 2018. Patents issued before that date have seven digits (or fewer for older patents — Patent No. 1,000,000 was issued back in 1911).

Why Publication Matters

Patent application publication has several important practical implications:

• Your invention becomes public. Once your application publishes, your invention is part of the public record. This is why anything disclosed in a published application can no longer be kept confidential — including through an NDA. If you’ve shared your application details under an NDA, be aware that publication ends that protection.
• It becomes prior art. A published application can be used as prior art against later-filed applications — both your own continuations and other applicants’ applications.
• Provisional rights may attach. Once an application publishes, the applicant may have provisional rights to reasonable royalties against anyone who later infringes the claims — but only if those claims ultimately issue in substantially the same form.
• Competitor monitoring becomes possible. Publication allows competitors to monitor your patent activity — and allows you to monitor theirs. Watching published applications in your technology space is a valuable competitive intelligence tool.

Can You Prevent Publication?

In limited circumstances, yes. If you file only in the United States and do not intend to file foreign applications, you can request non-publication at the time of filing. If the application is later allowed, it will issue as a patent without ever having been published as an application. However, if you later decide to file internationally, you must notify the USPTO and the non-publication request is rescinded. This option requires careful planning and is worth discussing as part of your overall IP strategy.

Questions About Your Application or a Competitor’s?

Whether you’re trying to understand the status of your own application, monitor a competitor’s published filings, or assess the strength of an application’s claims, I can help. Schedule a consultation today — the initial $250 fee is credited toward your work if you move forward.

Related Topics:

• What Does it Mean to Be “Patent Pending”?
• What is a Provisional Patent Application?
• What is a Priority Date, and What Does it Mean to “Maintain Pendency”?
• Can I Tell Others About My Invention Before I File a Patent Application?
• What is a Confidentiality Agreement or a Non-Disclosure Agreement?
• Understanding the Scope and Value of a Patent