The Importance of the Publication of the Patent Application

Authors: Renata Anduziene, Patent Consultant at METIDA, Dr. Jacekas Antulis, Associate Partner, Head of Patent Division at METIDA

Alarm_Clocks_20101107aEveryone who is interested in patents knows that all patent applications are published 18 months after the date of filing. This 18 month term is, in fact, applied in all regional and national applications. Thus, the procedure seems to be simple and well-known. Yet, is everyone aware of its importance and meaning?

The information on patented invention does not come instantly to the public. Specifically, under the patent law of the Republic of Lithuania, a person can get information on patent application prior to its publication only if that person has obtained the applicant’s written consent. Until that time the information is kept secret by the examiners of a patent office and inventors. Yet, after the publication of the application, every interested person can gain access to this information. Hence, the invention then is disclosed to everyone. The publication process is very important and it has both advantages and disadvantages.

Difficulties

Due to the detailed disclosure of the invention to the public, interested parties can precisely specify which technical implementations are included into the patent of the invention and which are not. This can evoke risks for the invention to be copied.

Furthermore, when the competitors gain information on the invention, they can use that invention everywhere where the patent has no effect. Specifically, patent protection is territorially limited, and the patent has effect only in these countries, where the patent application has been filed or the patent will be granted.

Applicants who consider to withdraw their application due to the various reasons, should bear in mind that their requests for withdrawal have to be filed before the date of the publication of the application to keep the information on the patent application away from the public. This will prevent from competitors’ attacks and will enable the proprietors to file the patent application of their inventions (or their amended versions) later. After the publication date, the applicants cannot treat their patents as trade secrets.

Advantages

However, keeping the invention as secret is not always useful. If you want to license your invention, the earliest time you can do it is after the date of the publication (“the licenser (the applicant or the patent proprietor) issues the patent licence to permit others (the licensees) to use the invention which is published in the publication of the application or is the object of the grant of the patent under the conditions that are laid out in the licence agreement”).

Another and perhaps the most important positive aspect of the publication is the temporary protection. According to the Lithuanian patent law, the published patent gets the temporary patent protection from its publication date until its date of the grant. Under this protection, the proprietor gains an exclusive right to prevent the third parties from the acts of making, using, offering for sale, selling, importing or exporting the invented product or the invented process. The appeals before the court regarding the compensation can be filed after the grant of the patent, yet, warning the infringers about the patent infringement can be done without the grant.

Time is Important too

In many countries an application for the early patent publication is also possible. The publication date in Lithuania under the usual procedures is 18 months after the date of filing or the priority date. Yet, the applicant is entitled to apply for the early patent publication which is usually published no earlier than 6 months after the application date. Since Lithuanian patentability system lacks the substantive examination, applicants are keen on getting the patent publication and the grant as earlier as possible. The early patent publication is also recommended for patent proprietors who have observed the infringements of their patent rights during the examination process.

Some Lithuanians tend to publish their inventions even earlier, as their enterprise cannot wait for the publications for six or 18 months. On the other hand, the international patentability system does not obstruct competitors in neighbouring countries, such as Latvia or Estonia, to use and patent the Lithuanian invention in their market even after the priority date in Lithuania. The same problem is found in other European countries. Therefore, the European Patent Office and many other European countries, e.g. Germany, Latvia or Estonia, allow the applicants to have their inventions published as quickly as possible in the forthcoming bulletin after the proprietor’s or his/her representative’s request.

In any case, proprietors should always consider what is more useful to them: the publication under the usual procedures, the early publication or the withdrawal of the application before its publication. Meanwhile, in order to ensure inventor’s protection against financially stronger market players abroad, applicants should be given an opportunity (under the separate request) to have their patents published as quickly as possible, e.g. in the forthcoming issue of the bulletin after the date of the request. In this way, the inventors would have the same commercial opportunities as their competitors abroad.

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