Patents - 35 USC Section 122

01/19/04

Sec. 122. Confidential status of applications; publication of
patent applications

(a) Confidentiality. - Except as provided in subsection (b),
applications for patents shall be kept in confidence by the Patent
and Trademark Office and no information concerning the same given
without authority of the applicant or owner unless necessary to
carry out the provisions of an Act of Congress or in such special
circumstances as may be determined by the Director.
(b) Publication. -
(1) In general. - (A) Subject to paragraph (2), each
application for a patent shall be published, in accordance with
procedures determined by the Director, promptly after the
expiration of a period of 18 months from the earliest filing date
for which a benefit is sought under this title. At the request of
the applicant, an application may be published earlier than the
end of such 18-month period.
(B) No information concerning published patent applications
shall be made available to the public except as the Director
determines.
(C) Notwithstanding any other provision of law, a determination
by the Director to release or not to release information
concerning a published patent application shall be final and
nonreviewable.
(2) Exceptions. - (A) An application shall not be published if
that application is -
(i) no longer pending;
(ii) subject to a secrecy order under section 181 of this
title;
(iii) a provisional application filed under section 111(b) of
this title; or
(iv) an application for a design patent filed under chapter
16 of this title.
(B)(i) If an applicant makes a request upon filing, 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
publication of applications 18 months after filing, the
application shall not be published as provided in paragraph (1).
(ii) An applicant may rescind a request made under clause (i)
at any time.
(iii) An applicant who has made a request under clause (i) but
who subsequently files, in a foreign country or under a
multilateral international agreement specified in clause (i), an
application directed to the invention disclosed in the
application filed in the Patent and Trademark Office, shall
notify the Director of such filing not later than 45 days after
the date of the filing of such foreign or international
application. A failure of the applicant to provide such notice
within the prescribed period shall result in the application
being regarded as abandoned, unless it is shown to the
satisfaction of the Director that the delay in submitting the
notice was unintentional.
(iv) If an applicant rescinds a request made under clause (i)
or notifies the Director that an application was filed in a
foreign country or under a multilateral international agreement
specified in clause (i), the application shall be published in
accordance with the provisions of paragraph (1) on or as soon as
is practical after the date that is specified in clause (i).
(v) If an applicant has filed applications in one or more
foreign countries, directly or through a multilateral
international agreement, and such foreign filed applications
corresponding to an application filed in the Patent and Trademark
Office or the description of the invention in such foreign filed
applications is less extensive than the application or
description of the invention in the application filed in the
Patent and Trademark Office, the applicant may submit a redacted
copy of the application filed in the Patent and Trademark Office
eliminating any part or description of the invention in such
application that is not also contained in any of the
corresponding applications filed in a foreign country. The
Director may only publish the redacted copy of the application
unless the redacted copy of the application is not received
within 16 months after the earliest effective filing date for
which a benefit is sought under this title. The provisions of
section 154(d) shall not apply to a claim if the description of
the invention published in the redacted application filed under
this clause with respect to the claim does not enable a person
skilled in the art to make and use the subject matter of the
claim.
(c) Protest and Pre-Issuance Opposition. - The Director shall
establish appropriate procedures to ensure that no protest or other
form of pre-issuance opposition to the grant of a patent on an
application may be initiated after publication of the application
without the express written consent of the applicant.
(d) National Security. - No application for patent shall be
published under subsection (b)(1) if the publication or disclosure
of such invention would be detrimental to the national security.
The Director shall establish appropriate procedures to ensure that
such applications are promptly identified and the secrecy of such
inventions is maintained in accordance with chapter 17 of this
title.

Last modified: April 19, 2006