Changes to US Patent laws

6 December 2000

This is to inform you that, from 29th November 2000, patent applications filed in the United States will be published 18 months after their first filing date (priority date).
Previously patent applications in the United States were published only if and when they were issued, that is, after approximately 2-3 years.
During this period it was not possible to obtain any information; when a US patent application was not issued, everything remained secret.
This typically US norm did not allow for a full view of the technique and patent situation of competitors relating to the United States, even though it guaranteed total discretion.

The United States Patent and Trademark Office (PTO) has published a regulation which foresees the following exceptions to automatic publication:

  1. The application is no longer pending, as by abandonment, issuance as a patent, or termination of proceedings;

  2. The application is under a secrecy order because the subject matter relates to national security matters;

  3. The application is a provisional application;

  4. The application is a design application;

  5. The application is a reissue application;

  6. The applicant made a request, upon filing, not to publish the application, certifying that the invention disclosed has not and will not be the subject of a published foreign application, including a Patent Cooperation Treaty (PCT) application.
    This request not to publish can be rescinded at a later date, following precise rules, otherwise the application could be rejected.

All patent applications filed before, but which are still pending on 29.11.2000 can be published on the specific request of the Patentee except in the cases of (1) to (5) above.
The content of a patent application will be published as it was filed; no subsequent amendments to the text after filing will be published with the application except on the specific request of the Patentee and with a good reason.

The publication of a US patent application gives the Patentee provisional rights for the transitional period between the publishing and granting of the application.
These provisional rights depend on the patent being issued and can entitle the Patentee to reasonable royalties for infringement of the claims in the published application during the transitional period. Such provisional rights are also dependent on the requirement for the claims in the issued patent to be substantially identical to those made in the published application.

It is also possible, on the Patentee's specific request, to defer examination of a patent application for a period of up to 3 years from its first filing date (priority date).


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