Patent Dilemma – To publish or not to publish?

Many people already know that patents are published.  However, did you know pending non-provisional patent applications also publish, even before they issue as a full patent?  (Note: Provisional applications stay secret and do not publish - see advantages/disadvantages of a provisional.)

Is patent publication a good thing?

The publication of your patent application may be a benefit in some cases, but may be harmful in others.  Typically this depends on your business plan and commercialization strategy.  I have one client who needs about two more years to develop his prototype and business strategy before going  public with his idea.  In his case, an early publication of his patent application before he is ready would be harmful.  On the other hand, I have one client who is about ready to launch his Kickstarter campaign and go public with his idea so in that case, an early patent publication may be an added bonus and a good thing.

What are my options regarding patent publication?

There are three choices regarding publication when filing a new non-provisional patent application.

Option 1 - Choose regular publication and your patent application will publish in about 18 months. (Note: This time may be shorter if your non-provisional application claims priority to a provisional application.)

Option 2 - Choose early publication and your patent application may publish in just a few months. (Note: This is now a free service that the patent office provides; the cost used to be several hundred dollars.)

Option 3 - Request not to publish.  In some cases where you are only filing a USA patent application and not filing in other countries you may request your application to remain secret.  However, once it is allowed and issued as a patent it will publish at that time.

Advantages of early publication:

The biggest advantage to early publication is that it buys you some credibility in the marketplace and some of your customers and investors may gain confidence in your idea from seeing a qualified patent publication.  Some less patent savvy people may even mistake your published patent application for an actual patent (I have even seen investors make this mistake).

Disadvantages of early publication:

The biggest disadvantage to an early publication is that it may put your idea out there before you are ready.  It also gives your competition more time to try and copy what you are doing before your invention has issued as a patent, and even try to design around your patent pending publication.

Best strategy for publication:

My usual recommendation for inventors is to let your application publish normally.  If you are going to be launching your product soon, you may want to request early publication.  However, if you need a few more years of work or if you are not planning a public launch of your product, then it may be best to request non-publication.


Suggested reading:  Are provisional patent applications a "waste"?