The Patent Cooperation Treaty, Canada, Europe, Japan and many other countries require such publication. Publication creates several new risks and opportunities. First, publication destroys trade secrecy. Second, a published application may be cited as prior art based on the application's effective filing date, impeding later-filed applications for the same or closely similar invention. Third, armed with insight from published applications, businesses may now take steps to avoid infringement, long before the specter of liability looms large.
Publication also opens the door to a new remedy against infringers.
Under Section 154 of the Patent Act, as amended, a patent owner may obtain a reasonable royalty for infringing acts occurring from the date of publication to the date of issuance, subject to two prerequisites. Second, the infringer must have actual notice of the published application, which a patentee can ensure by promptly sending a copy of the published application to known and suspected infringers. A party who receives such notice should now proceed with caution. Title V of the Act requires covered entities to be in compliance by July 1, 2001. Final federal regulations implementing the GLB's privacy provisions were issued by various federal agencies in May 2000.