Question 1

When is a patent application file available to the public?

Accepted Answer

A patent application file becomes available to the public in the following situations:

When the application has issued as a patent or published as a statutory invention registration
When the application has been published and subsequently abandoned
When the application has been published and is still pending
When an unpublished, abandoned application is identified or relied upon in certain public documents
When the benefit of an unpublished pending application is claimed in certain public documents

These conditions are outlined in 37 CFR 1.14(a)(1). In most cases, a fee is required to access the application file contents.

Question 2

When do materials submitted under MPEP § 724.02 become publicly available?

Accepted Answer

Materials submitted under MPEP § 724.02 may become publicly available under different circumstances:

After publication of the application under 35 U.S.C. 122(b)(1), if no petition to expunge was filed or if such a petition was denied.
Upon abandonment of the application, if no petition to expunge was filed.
Upon issuance of the application as a patent, if no petition to expunge was filed before the notice of allowability was mailed.

The MPEP states: "If a petition to expunge is not filed prior to the mailing of the notice of allowability, the materials submitted under MPEP § 724.02 will be released to the public upon the issuance of the application as a patent and upon the filing of a request and the appropriate fee (37 CFR 1.14)."

It's crucial for applicants to file petitions to expunge in a timely manner if they wish to maintain the confidentiality of these materials.

To learn more:

MPEP 724.02

Question 3

What happens to confidential materials if a patent application is abandoned?

Accepted Answer

When a patent application is to be abandoned, the examiner reviews the file for any pending petitions to expunge confidential materials. The outcome depends on whether such a petition has been filed:

If a petition to expunge has been filed, it will be granted and the materials will be expunged, regardless of their materiality to patentability.
If no petition to expunge has been filed, the materials become available to the public under specific regulations.

The MPEP states: "If the application is to be abandoned, prior to the mailing of a notice of abandonment, the examiner will review the patent application file and determine if a petition to expunge is in the application file but not acted upon. If a petition to expunge has been filed, irrespective of whether the materials are found to be material to patentability, the petition to expunge will be granted and the materials expunged."

If no petition is filed, the materials become public under 37 CFR 1.14(a)(1)(ii) or 37 CFR 1.14(a)(1)(iv).

To learn more:

Question 4

What happens to application access restrictions after publication?

Accepted Answer

Access restrictions on patent applications change significantly after publication. According to MPEP 106, "Of course, after the application has published pursuant to 35 U.S.C. 122(b), the application will be available to the public and any restriction on the inventor to access his or her application previously granted will no longer be in effect."

This means that once a patent application is published, typically 18 months after the earliest filing date, any previously imposed restrictions on access, including those on the inventor, are lifted. The application becomes publicly accessible, aligning with the USPTO's goal of promoting transparency in the patent process.

For more information on public availability, visit: public availability.

For more information on USPTO procedures, visit: USPTO procedures.

Question 5

How are materials submitted under MPEP § 724.02 treated in applications covered by 35 U.S.C. 122?

Accepted Answer

Materials submitted under MPEP § 724.02 in applications covered by 35 U.S.C. 122 are treated as follows:

The materials are kept in a sealed envelope marked "Not Open To The Public".
They are not publicly available until a determination is made regarding their materiality to patentability.
After publication under 35 U.S.C. 122(b)(1), the materials are only released if no petition to expunge was filed or if such a petition was denied.
The examiner reviews the application file for any pending petitions to expunge before abandonment or allowance.

As stated in the MPEP: "Any materials submitted under MPEP § 724.02 in an application covered by 35 U.S.C. 122 will be treated in the following manner: (A) The submitted material will be maintained in the original envelope or container (clearly marked "Not Open To The Public") and will not be publicly available until a determination has been made as to whether or not the information is material to patentability."

To learn more:

Question 6

Does restricting inventor access to a patent application continue after the application publishes?

Accepted Answer

No, once a patent application publishes under 35 U.S.C. 122(b), it becomes available to the public. At that point, any previous grant restricting the inventor's access to the application file is no longer in effect.

Of course, after the application has published pursuant to 35 U.S.C. 122(b), the application will be available to the public and any restriction on the inventor to access his or her application previously granted will no longer be in effect.

Patent Law FAQ

Here’s the complete FAQ:

MPEP 102-Information as to Status of an Application (1)

When is a patent application file available to the public?

MPEP 106-Control of Inspection by Assignee (2)

What happens to application access restrictions after publication?

Does restricting inventor access to a patent application continue after the application publishes?

Patent Law (3)

When is a patent application file available to the public?

What happens to application access restrictions after publication?

Does restricting inventor access to a patent application continue after the application publishes?

Patent Procedure (2)

When is a patent application file available to the public?

What happens to application access restrictions after publication?