When does confidential information in patent term extension applications become public?

The timing of when confidential information in patent term extension applications becomes public is addressed in MPEP 2760. The section states:

“The information will not be made public as part of the patent file before a certificate of patent extension is issued. […] If such information was material to a determination of eligibility or any other Office responsibility under 35 U.S.C. 156, it will be made public at the time the certificate of extension is issued.”

This means:

• Confidential information is not made public before the certificate of patent extension is issued.
• If the information was crucial for determining eligibility under 35 U.S.C. 156, it becomes public when the certificate is issued.
• For non-material information, there’s a possibility of expungement: “Otherwise, if a suitable petition to expunge is filed before the issuance of the certificate, the trade secret or confidential information will be expunged from the file and returned to the patent term extension applicant.”
• If no petition to expunge is filed before the certificate is issued, all information becomes public: “If a petition to expunge is not filed prior to the issuance of the certificate, all of the information will be open to public inspection.”

Applicants should be aware of these timelines and act accordingly to protect their confidential information.

To learn more:

• confidential information
• patent term extension
• public disclosure
• expungement
• certificate issuance