MPEP § 1120 — MPEP § 1120
Current through: 2022-07-01

1120-Eighteen-Month Publication of Patent Applications 
 
 

 
 
 
 
 
 
 
 

 

 
 
 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

 
 
 
 
 

 
 
 
 
 
 
 
 
 
 
 

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 Chapter 1100 

 Section 1120 
 

 
 
 
 
 
 1120 Eighteen-Month Publication of Patent Applications [R-07.2022]

 
 35 U.S.C. 122 
 Confidential status of applications; publication of patent
 applications. 

 *****

 
 (b) PUBLICATION.— 
 
 (1) IN GENERAL.— 
 
 (A) Subject to paragraph (2), each application for a
 patent shall be published, in accordance with procedures determined by
 the Director, promptly after the expiration of a period of 18 months
 from the earliest filing date for which a benefit is sought under this
 title. At the request of the applicant, an application may be
 published earlier than the end of such 18-month period.
 

 (B) No information concerning published patent
 applications shall be made available to the public except as the
 Director determines.
 

 (C) Notwithstanding any other provision of law, a
 determination by the Director to release or not to release information
 concerning a published patent application shall be final and
 nonreviewable.
 

 
 

 (2) EXCEPTIONS.— 
 
 (A) An application shall not be published if that
 application is— 
 
 (i) no longer pending;

 (ii) subject to a secrecy order under
 section 181
 ;
 

 (iii) a provisional application filed under
 section
 111(b) ; or
 

 (iv) an application for a design patent filed under
 chapter
 16 .
 

 
 

 
 

 
 

 
 *****

 

 
 37 CFR 1.211 Publication of applications. 

 
 (a) Each U.S. national application for patent filed in
 the Office under 35 U.S.C. 111(a) and each
 international application in compliance with 35 U.S.C. 371 will be
 published promptly after the expiration of a period of eighteen months from the
 earliest filing date for which a benefit is sought under title 35, United States
 Code, unless: 
 
 (1) The application is recognized by the Office as no longer
 pending; 
 

 (2) The application is national security classified (see
 §
 5.2(c) ), subject to a secrecy order under
 35
 U.S.C. 181 , or under national security review; 
 

 (3) The application has issued as a patent in sufficient time
 to be removed from the publication process; or 
 

 (4) The application was filed with a nonpublication request in
 compliance with § 1.213(a) .
 

 
 

 (b) Provisional applications under 35 U.S.C.
 111(b) shall not be published, and design applications under
 35 U.S.C. chapter 16, international design applications under 35 U.S.C. chapter
 38 , and reissue applications under 35 U.S.C. chapter 25
 shall not be published under this section. 
 

 (c) An application filed under 35 U.S.C.
 111(a) will not be published until it includes the basic
 filing fee (§ 1.16(a) or (c) ) and any English
 translation required by § 1.52(d) . The Office may
 delay publishing any application until it includes any application size fee
 required by the Office under § 1.16(s) or § 1.492(j) ,
 a specification having papers in compliance with § 1.52 and
 an abstract ( §
 1.72(b) ), drawings in compliance with § 1.84 , a
 “Sequence Listing” in compliance with §§ 1.821 through
 1.825 (if applicable) for an application filed before July
 1, 2022, a “Sequence Listing XML” in compliance with §§
 1.831 through 1.835 (if applicable) for an
 application filed on or after July 1, 2022, and the inventor's oath or declaration
 or application data sheet containing the information specified in
 §
 1.63(b) . 
 

 (d) The Office may refuse to publish an application, or to include a
 portion of an application in the patent application publication ( §
 1.215 ), if publication of the application or portion thereof
 would violate Federal or state law, or if the application or portion thereof
 contains offensive or disparaging material. 
 

 (e) The publication fee set forth in § 1.18(d) 
 must be paid in each application published under this section before the patent
 will be granted. If an application is subject to publication under this section,
 the sum specified in the notice of allowance under § 1.311 will
 also include the publication fee which must be paid within three months from the
 date of mailing of the notice of allowance to avoid abandonment of the
 application. This three-month period is not extendable. If the application is not
 published under this section, the publication fee (if paid) will be refunded.
 

 
 
 I. IN GENERAL With certain exceptions, nonprovisional utility and plant applications
 for patent filed on or after November 29, 2000 are published promptly after the
 expiration of a period of eighteen months from the earliest filing date for which a
 benefit is sought under title 35, United States Code (eighteen-month publication or
 pre-grant publication (PGPub)). See 35 U.S.C. 122(b) . The Office will
 generally publish:
 

 
 (A) utility and plant applications filed under 35 U.S.C.
 111(a) on or after November 29, 2000; and
 

 (B) nonprovisional applications which entered the national stage
 after compliance with 35 U.S.C. 371 from an
 international application under 35 U.S.C. 363 filed on or
 after November 29, 2000 (regardless of whether the international application has
 been published by the International Bureau (IB) under PCT Article 21 in English).
 
 

 
 The Office will not publish the following applications under
 35 U.S.C.
 122(b) :
 

 
 (A) Provisional applications filed under 35 U.S.C.
 111(b) (for more information see subsection II. EXCEPTIONS
 below); 
 

 (B) Design applications filed under 35 U.S.C.
 171 ;
 

 (C) International design applications filed under
 35
 U.S.C. 385 ; and
 

 (D) Reissue applications filed under 35 U.S.C.
 251 (because reissue applications are not kept confidential
 under 35 U.S.C.
 122(a) ).
 

 
 Applications will be published after the expiration of a period of
 eighteen months from the earliest of: (1) the U.S. filing date; (2) the international
 filing date; or (3) the filing date of an earlier application for which a benefit is
 sought under 35 U.S.C.
 119 , 120 , 121 ,
 365 , or 386 . Applicants are encouraged to
 timely submit any desired priority and benefit claims to ensure that their applications
 will be published on time and to avoid the need to file a petition to accept
 unintentionally delayed priority or benefit claims under 37 CFR 1.55 or
 1.78 and the surcharge set forth in 37 CFR
 1.17(t) . See MPEP § 211.04 and 214.02 .
 Applications are normally published based on the application as filed and certain
 amendments. See MPEP §
 1121 . A proper continued prosecution application (CPA) for
 utility or plant patent filed on or after November 29, 2000 will be published based upon
 the application papers deposited on the filing date of the first prior application.
 (Note: CPA practice has been eliminated as to utility and plant applications effective
 July 14, 2003. See MPEP § 201.06(d) .) Since a request for
 continued examination (RCE) under 37 CFR 1.114 is not the filing of a
 new application, filing an RCE will not cause an application filed before November 29,
 2000 to be published. The Office will not mail a paper copy of the patent application
 publication to the applicant, but will mail a notice to the applicant indicating that
 the application has been published. See MPEP § 1127 . Patent application
 publications are available on the USPTO website ( www.uspto.gov ). 
 

 II. EXCEPTIONS An application will not be published if one of the following exceptions
 as set forth in 37 CFR
 1.211 applies:
 

 
 (A) The application is recognized by the Office as no longer pending;
 for information on express abandonment to avoid publication see 37 CFR
 1.138(c) and MPEP § 1125 ;
 

 (B) The application is national security classified (see
 37 CFR
 5.2(c) ), subject to a secrecy order under 35 U.S.C.
 181 , or under national security review;
 

 (C) The application has issued as a patent in sufficient time to be
 removed from the publication process; or
 

 (D) The application was filed with a nonpublication request in
 compliance with 37 CFR 1.213(a) . See MPEP §
 1122 - 1124 .
 

 
 The Office will not publish applications that are recognized as no
 longer pending. See 37 CFR 1.211(a)(1) . An application
 is not "recognized by the Office as no longer pending" when the
 period for reply (either the shortened statutory period for reply or the maximum
 extendable period for reply) to an Office action has expired, but the Office has not yet
 entered the change of status (to abandoned) of the application in the Office’s Patent
 Data Portal (PDP) system and mailed a notice of abandonment. An application will remain
 in the publication process until the Patent Data Portal system indicates that the
 application is abandoned. Once the Patent Data Portal system indicates that an
 application is abandoned, the Office will attempt to remove the application from the
 publication process and avoid dissemination of the application information. 
 

 Unless an applicant has received a notice of abandonment at least 4
 weeks prior to the projected publication date, an applicant who wants to abandon the
 application to avoid publication must file a petition under 37 CFR 1.138(c) to
 expressly abandon the application and avoid publication. See MPEP § 1125 . 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. 
 

 The Office will not publish applications that have issued as patents in
 sufficient time to be removed from the publication process. See 37 CFR
 1.211(a)(3) . If the pre-grant publication process coincides with
 the patent issue process, the Office will continue with the pre-grant publication
 process until a patent actually issues. This is because there are many instances in
 which the Office mails a notice of allowance in an application but the application does
 not issue as a patent in regular course (e.g., abandonment due to failure to pay the
 issue fee, or withdrawal from issue). Therefore, the Office will not discontinue the
 pre-grant publication process until a patent has actually issued. Since the Office
 cannot discontinue the pre-grant publication process during the last two to four weeks
 of the publication process, this will result in a few applications being issued as
 patents and subsequently being published as patent application publications.
 

 The Office may refuse to publish an application, or to include a
 portion of an application in the publication, if publication of the application or
 portion thereof would violate Federal or state law, or if the application or portion
 thereof contains offensive or disparaging material. See 37 CFR
 1.211(d) . The Office may require a substitute specification to
 delete the portion of the application that would violate Federal or state law, or that
 contains offensive or disparaging material. 
 

 Converting a nonprovisional application to a provisional application
 will not avoid the publication of the nonprovisional application unless the request to
 convert is recognized in sufficient time to permit the appropriate officials to remove
 the nonprovisional application from the publication process. The Office cannot ensure
 that it can remove an application from the publication process or avoid publication of
 application information any time after the publication process for the application has
 been initiated. Technical preparations for publication of an application generally begin
 four months prior to the projected publication date. The projected publication date is
 indicated on the filing receipt for the patent application. 
 

 III. APPLICATION MUST BE COMPLETE In accordance with 37 CFR 1.211(c) , publication will
 not occur or will be delayed in certain circumstances. The Office will not publish an
 application until the application includes: 
 

 
 (A) the basic filing fee; and 

 (B) an English translation if the application is in a language other
 than English. 
 

 
 The Office may delay publication until the application includes: 

 
 (A) any application size fee required by the Office under
 37 CFR
 1.16(s) or 37 CFR 1.492(j) ;
 

 (B) a specification in compliance with 37 CFR
 1.52 ;
 

 (C) an abstract in compliance with 37 CFR
 1.72(b) ;
 

 (D) drawings (if any) in compliance with 37 CFR 1.84 ;
 
 

 (E) a “Sequence Listing” in compliance with 37 CFR 1.821 
 through 1.825 (if applicable) for an application filed before July
 1, 2022; 
 

 (F) a “Sequence Listing XML” in compliance with
 37
 CFR 1.831 through 1.835 (if applicable) for an application filed on or after
 July 1, 2022; and
 

 (G) an oath or declaration or an application data sheet
 containing the information specified in 37 CFR 1.63(b) .
 

 
 If an application does not contain the content specified in
 37 CFR
 1.211(c) and papers or drawings of sufficient quality to create a
 patent application publication by eighteen months from the earliest filing date for
 which benefit is claimed, the Office will publish the application as soon as practical
 after these deficiencies are corrected. For example, publication of the patent
 application publication may be delayed if the application papers submitted on the filing
 date of the application do not include the content needed (e.g., an abstract or the
 information specified in 37 CFR 1.63(b) in an oath or
 declaration or an application data sheet) or the specification (including claims) or
 drawings are not of sufficient quality to be used to create a patent application
 publication. In such a situation, the Office will issue a preexamination notice
 requiring a substitute specification or replacement drawings. The applicant’s reply
 (e.g., substitute specification or replacement drawings) to the notice will be used for
 creating the patent application publication. If the application on filing includes
 papers that are of sufficient quality to create the publication, the Office will publish
 the application using the originally filed application papers.
 

 Applicants who attempt to delay publication by intentionally delaying
 the submission of the application content necessary for publication may encounter a
 reduction in any patent term adjustment under 35 U.S.C. 154(b) . See
 35 U.S.C.
 154(b)(2)(C)(ii) and 37 CFR
 1.704(b) . 
 

 IV. PROJECTED PUBLICATION DATE Once the application is complete, the Office will provide applicants
 the projected publication date of the application on a filing receipt. The projected
 publication date normally will be the later of: (1) eighteen months from the earliest
 filing date claimed; or (2) fourteen weeks from the mailing date of the filing receipt.
 The publication process takes about fourteen weeks. Publication occurs on Thursday of
 each week. 
 

 Applicants should carefully and promptly review their filing receipts.
 Applicants should promptly file a request for corrected filing receipt if the
 information on the filing receipt needs to be corrected. In addition, applicants should
 contact the Application Assistance Unit (see MPEP § 1730 ) if the projected
 publication date is incorrect or if a projected publication date has been assigned to an
 application that should not be published. Applicants should also promptly check any
 priority or benefit claims provided on the filing receipt and timely file or correct any
 priority or benefit claims if the filing receipt does not include the desired claims or
 includes incorrect claims. If the information is incorrect, Applicants should promptly
 file a request for corrected filing receipt to assist the Office in quickly processing
 the change prior to export of the application to the publisher. This will avoid the need
 to file a petition under 37 CFR 1.55 or 1.78 to accept
 unintentionally delayed claims and the surcharge under 37 CFR
 1.17 (t). See MPEP § 211.04 and 214.02 .
 Furthermore, if the corrections are not recognized by the Office before the technical
 preparation for publication has begun, the Office cannot change the projected
 publication date and include the corrections in the publication.
 

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 1101-Request for Statutory Invention Registration (SIR) 

 1102-1110-[Reserved] 

 1111-SIR Publication and Effect 

 1112-1119-[Reserved] 

 1120-Eighteen-Month Publication of Patent Applications 

 1121-Content of a Patent Application Publication 

 1122-Requests for Nonpublication 

 1123-Rescission of a Nonpublication Request 

 1124-Notice of Foreign Filing 

 1125-Express Abandonment to Avoid Publication 

 1126-Publication Fees 

 1127-Notice of Publication 

 1128-Availability of Published Applications 

 1129-Request for Early Publication 

 1130-Republication and Correction of Patent Application Publications 

 1131-[Reserved] 

 1132-Requests for Redacted Publication 

 1133-Voluntary Publication 

 1134-Third Party Inquiries and Correspondence in a Published Application 
 1134.01-Third Party Submissions Under 37 CFR 1.290 

 
 

 1135-PGPub Forms 

 

 

 
 

 
 
 

 
 

 

 
 
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