Public Domain versus Patents and Patent Applications
Public domain - something which is in the public
domain can be freely used by the public because it is outside of intellectual
property (IP) protection. Either the IP protection was not sought or
received, or the IP protection has expired.
Patents - afford protection for the invention defined
by the claims of an issued patent for the limited term of the patent.
Patent applications - afford no IP protection
themselves, and instead only the potential of a patent possibly being issued
from a non-provisional application.
Patent applications - are at least initially
confidential and not available to the public.
A provisional or non-provisional patent application can be filed while maintaining
confidentiality, (until . . . ):
Patent applications are not available to the public, (until . . .
Patent applications are held in the strictest confidence by the
USPTO, (until . . . )
Any publicity about any recent patent application filing is derived from
private sources (usually the owner) and the USPTO will neither confirm nor deny
Therefore the filing of a patent application does not, in and of
itself, have any impact on confidentiality and any trade secret maintenance.
The first "until" event triggering availability, i.e.,
public access to a patent application:
The USPTO publishes non-provisional patent applications 18 months
after the effective filing date, (unless . . .).
If priority is claimed from a provisional application, the
18-months-to-publication count starts at on the provisional filing date (so
publication might come 6 months after the actual non-provisional filing date).
Unless the applicant files a request for non-publication together
with the non-provisional application when filed.
A non-publication request cannot be filed after the
non-provisional application is filed, and cannot be filed if a counterpart
filing in a country with an 18-month-publication rule is intended.
Therefore confidentiality and trade secret protection can be maintained on
disclosures in a U.S. patent application until the 18-months-from-filing-date
publication triggers public access, and longer if non-publication of the
non-provisional application is requested when it is filed.
The filing of a provisional application in and of itself never
destroys confidentiality and trade secret protections. Provisional applications themselves are
neither examined nor published. (The publication of a non-provisional
application claiming priority from a provision will trigger public access to
that provisional application.
The second "until" event triggering availability, i.e.,
public access to a patent application:
The issuance of a U.S. patent triggers public access to all
disclosures in the patent application, and to all disclosures in earlier
applications (provisional or non-provisional) from which filing date priority is
claimed for the patent.
The issuance of a U.S. patent destroys all confidentiality and trade secret
protection for the disclosures therein, absolutely and for all time.
A. U.S. patent cannot be issued without the applicant's
awareness. The applicant can still elect confidentiality and trade secret protection over
patent protection after patent-application allowance, by abandoning the patent
application before issuance.
term of a utility patent starts the day the patent issues and ends twenty years
after the effective filing date, plus any additional days added for undue USPTO
delays at the time of issuance, unless sooner terminated.
term of a patent remains roughly about seventeen years from the issue date.
termination arises from failure to pay periodic post-issuance maintenance fees,
and other events.
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