How can an applicant avoid publication of their patent application?

There are several ways an applicant can avoid publication of their patent application, as outlined in MPEP 1120:

1. File a nonpublication request: Applicants can file a nonpublication request in compliance with 37 CFR 1.213(a) at the time of filing the application.
2. Express abandonment: Applicants can file a petition under 37 CFR 1.138(c) to expressly abandon the application and avoid publication. However, this must be done at least 4 weeks prior to the projected publication date.
3. Fail to reply to an Office action: If an application becomes abandoned due to failure to reply to an Office action, it may not be published. However, this method is risky as the Office may not recognize the abandonment in time to stop publication.

The MPEP warns: “An applicant who seeks to avoid publication by permitting an application to become abandoned (for failure to reply to an Office action) and passively waiting for the Office to recognize that the application has become abandoned bears the risk that the Office will not recognize that the application has become abandoned and change the status of the application in the Patent Data Portal system in sufficient time to avoid publication.”

It’s important to note that intentionally delaying the submission of application content to avoid publication may result in a reduction of any patent term adjustment under 35 U.S.C. 154(b).

To learn more:

• avoid patent publication
• nonpublication request
• express abandonment
• patent application strategy