A Patent Application Publication (PAP) is a publication of a patent application that has been published 18 months after the applicant’s priority date. This stage provides a snapshot of the work that has been done before patent protection is granted.
Publication allows the public to find out about new inventions and ideas. It also provides a forum for patent applicants to receive feedback from industry professionals. This feedback can help to improve the invention’s protection and grant it a patent.
The publication of a patent application can have important implications for your patent rights. On the one hand, it can help to establish an earlier priority date for your invention, which can be crucial in determining whether your invention is novel and non-obvious. On the other hand, it can also make it easier for competitors to learn about your invention and potentially design around it.
Once your patent application has been published, you may still have some patent rights, but they will be limited. For example, you may be able to prevent others from filing a patent application for the same invention, but you may not be able to prevent them from using or selling your invention. It is important to understand the implications of patent application publication for your particular situation, and to work closely with a qualified patent attorney or agent to ensure that your patent rights are protected to the fullest extent possible
Priority Date
Priority date in a patent application is an important milestone that will help you to get protection for your invention. This date determines whether other applications or publicly available documents are considered prior art to yours.
When you file a patent application for an invention that describes how it is made and used, a priority date is established. This is also known as an “enablement requirement” or “priority paper”.
You don’t have to disclose every aspect of your invention to be entitled to a priority date. However, it is sufficient to allow others to make and use your invention. When these criteria are generally met, you can claim the earliest priority date.
Consider the example of an inventor who has filed a patent application in June 2021. And claims priority on September 1, 2020. This patent application describes a novel way to generate electricity. In this example, prior art to be considered will only include articles, patent publications or any other written material published before September 1, 2020.
Clearly, an earlier priority date is better for claiming your patent because you have more time to research and perfect the invention before USPTO issues any initial Office Actions.
After you have obtained a priority date, your patent application must be published by the USPTO within 18 months. This is according to MPEP 1120: Eighteen month Publication of Patent Applications. The public will be able to view your patent application, even if it has not been granted.
A priority date is a way to ensure that your invention will not be copied by anyone else. This is because the patent office will give priority to the first priority date, which guarantees you exclusive rights to your patent.
It is also important to note that when applying for patent protection abroad, the first priority date is usually preferred. Because a single patent covers your invention throughout the globe,
Publication Date
Publication date refers to the date that a patent application becomes publicly accessible for viewing. This date is usually within 18 months of the applicant’s earliest priority date. Unless an applicant files for non-publication, the Patent Office will automatically publish this date for public access.
A patent publication usually includes an overview and introduction to the invention, as well as detailed descriptions, embodiments, and claims that define its protection scope. Depending on the scope of protection sought, it may include illustrations for explanation, gene sequences and references to biological deposits or code.
Once published, an online copy of the patent application is available, which includes a description and an abstract for searching purposes. It can be accessed using various media, such as the Office’s Examiner Automated search tool (EAST) or the Web-based Examiner Search Tool (WEST).
If the submitted application papers do not have sufficient content or quality to make a publication of patent applications, the Office will issue notices requesting that they be made available. The basis for publishing said publication will ultimately be determined by the applicant’s response to the notice with either sufficient content or adequate quality documents.
Not only should applicants provide the application content, required papers and drawings for publication but they also need to be aware of the possibility that their publication date could change if there is a claim for priority pursuant to 35 U.S.C. 119(e), if received after the mailing of the filing receipt, or more than 12 weeks before publication is scheduled.
If the corrections are made within twelve weeks of the publication date, applicants may submit them through Private PAIR. The correction will be published in the patent application publication.
Term Adjustment
Under United States patent law, the term of a patent (the period that it is valid) typically extends for 20 years from its earliest claimed priority date. However, this can be reduced by examination delays during prosecution at the United States Patent and Trademark Office (USPTO).
To account for delays, the USPTO uses Patent Term Adjustment (“PTA”). This adjustment adds additional days to a patent’s basic term of 20 years in order for patentees to receive their full 20 year lifespan.
The American Inventors Protection Act grants PTA by allowing patent applicants to extend the patent term by taking into consideration certain USPTO delays, which are described in Title 35 of U.S. Code Sections 154 (b)(1)-(C).
Type A adjustments refer to delays that are caused by inability of the USPTO to process applications within specified timeframes. These delays can be calculated by subtracting 1 day of Professional Time Ahead for each day the USPTO fails processing the application.
Patentees can request a reduction of their PTA for delay if there is no identifiable effort to avoid it. These requests are allowed by the Federal Circuit, especially when the USPTO’s action is based on “obviousness”.
Patentees could be eligible for an adjustment to their PTA for delay if they appealed a final Office Action to another Office or PTAB decision. This practice, also known as “due diligence”, can provide a valuable benefit.
Patentees may request a reduction in their Patent Trial Allowance (PTA), if they have not submitted an information disclosure statement to the USPTO prior to receiving notice of allowance. They can ask that the late-filed IDS be accepted by the USPTO as an adjustment statement to reduce any granted PTA.
Staying Out of Prior Art
Prior art refers to any evidence that someone else had an idea similar or identical to yours. These can be anything from ancient relics that date back thousands of years, to modern social media posts.
Prior art searches are often ignored by businesses because of their high cost. However they are vital for every business because they allow you to identify whether your idea is original and are part most patent application processes.
A patent is often the best way to protect your invention from any prior art. A patent is like a monopoly that the government grants to your idea. You can prevent others from copying it or creating it.
US law says that inventors’ disclosures made during a 12-month grace period prior to filing a US Patent Application are not considered prior art. This applies to third-party disclosures made within the same grace period.
You can also avoid prior art by not publicly disclosing your innovation before filing a patent application. In an effort to protect their confidential R&D work, some technology companies don’t make it public before they file for patent protection. This is done to prevent leaks and protect their inventions before they secure a patent.
In some cases, inventors might decide to make the invention public after filing a patent application. This can be done either by publishing the patent application or in a scientific journal.
If you plan to publish your patent application, ensure it is easily accessible for the public. Include a cover page that includes the title of the application, contact information, and a prominent link to the patent application.
Conclusion
The publication of a PAP can have both positive and negative effects on your patent rights. On one hand, it can help to deter others from trying to patent a similar invention, since the details of your invention are now publicly available. This can help to establish your priority rights in the invention and make it more difficult for others to infringe on your patent.
On the other hand, the publication of a PAP can also make it easier for others to design around your patent or develop competing technologies that are not covered by your patent. Additionally, if your patent is ultimately granted, the publication of the PAP can mean that your patent term is effectively reduced by 18 months, since the clock for the term of the patent starts ticking from the date of filing, not the date of grant.
Overall, the publication of a PAP can have complex implications for your patent rights, and it is important to consult with a patent attorney to understand the specific implications of your PAP on your patent strategy.