By no means its an overstatement that through patents we can understand Technological Evolution. You can literally access the history of modern technology in patent documents starting from the 1700s.
Technological advancement of tomorrow can only happen on the back of the technological history of yesterday.
Therefore, it is important from the evolution point of view to provide public access to the technology of yesterday. Then only, our prolific inventors can build new or advanced technology based on technological history disclosed in patent documents.
To drive innovation, two things are important:
1) Access to knowledge: by accessing knowledge, bright minds can innovate. That’s why we need to provide access to technological disclosures.
2) Incentive for innovators: To encourage and compensate for the work the innovators put in, we need to incentivize them.
Patent right addresses both of these problems.
Now that we have understood the basics of “why” patents become public, let’s address our main question, which is “when do patents become public?”
Patents become public in two stages. The first stage is the publication of the patent application. The second stage is the expiration of patent rights after 20 years. After the first stage, the public can access the technical disclosure of the invention but can’t use, make, sell, or import it freely. After the second stage, the public can use the invention in any way it wants.
As it is clear that both of the stages have different purposes and different meanings to the public. Let’s see both stages one by one in detail.
When do patents become public?
As we have seen that inventors are awarded monopoly over their inventions by giving patent rights in exchange for the knowledge that they contribute to the world.
Stage 1: Access to Knowledge
Following this logic, the patent application is normally published after the lapse of 18 months in India. That is so because, within 15 months of the filing of the patent application, you can withdraw your application.
But why would you want to withdraw your application in the first place? One of the main reasons is that you may not want the world to know about your invention, yet. Further, you may want to improve upon your work. So, once your application is published, it could serve as prior art for your future work.
Getting your future patent application rejected because of your previous work is the last thing you want.
Now, that the patent application has been published, anyone can utilize the technical know-how disclosed in it. It helps people in knowing about state-of-the-art. In turn, it helps avoid ‘duplication of work’ and ‘wastage of resources’ in re-inventing the wheel in the different parts of the world.
You should know that patent applications can be published early as well. For that, you have to file Form 9 along with the prescribed fees.
As the patent rights start from the date of publication, some people prefer to get their application published early or their application public early. Starting patent rights from the date of publication means that in case of an infringement, the damage is calculated from the date of publication. That is so because only after the event of publication do people come to know about your invention. Therefore, knowingly they can infringe your patent only after it has been made public or published.
Before you go for early publication, you should keep in mind the fact you may lose your capability to withdraw your patent application and keep it confidential until you decide to file it again.
Publication after patent grant: There are changes in non-provisional application specification that happen during the examination process. Finally, the patent that is granted often carries some modifications to the non-provisional specification. To make the public aware of the changes, the granted patent is made available to the public.
In fact, the amendments made even after the grant of the patent are made public through publication.
Stage 2: Incentive for innovators
Nobody wants to work for nothing. Innovation takes money, hard work, and years of the inventor’s life. Innovation is important. So is the motivation of inventors. Therefore, it becomes necessary to incentivize the inventors.
It turns out that 20 years is the value of the inventor’s investment. Patent rights expire 20 years from the date of priority or filing, whichever is earlier.
It is assumed that 20 years are sufficient to incentivize and motivate the inventor. Further in this period, the inventor can recover the investment that he had put in.
Having understood the significance of the period of 20 years, it is safe to state that in a true sense, patents become public only after the expiry of 20 years. In simple words, after expiration, the public can use the patented invention in any way it wants I.e. anyone can make, sell, use or import the invention of the expired patent.
When does patent pending & published patent become public?
To understand this, you should know that ‘patent pending’ or ‘patent applied for‘ are the same thing. Once a patent application is filed and is pending before the patent office, it is called patent pending. The patent application remains ‘patent pending’ till the patent is granted or abandoned.
If the last paragraph is clear to you then it’d be apparent to you that patent pending becomes public only after the publication of the patent application. That is normally 18 months if no request for early publication has been filed.
Moreover, you should know that once the application is published, it is referred to as a published patent. The published patent is not a legal term in India but is often used.
Patent pending is a legal term in many countries, Australia and USA for example. However, in India, there is no such legal term. But as a general term, it is used worldwide.
Once, the patent is granted or abandoned, the patent ceased to be pending as the same is evident from the term itself.
When does a provisional patent become public?
A provisional patent application is referred to as a provisional patent. Normally, the provisional patent application isn’t published. It is valid only for a year.
Patent applications are published only after a non-provisional patent application is filed. However, you should know that you can still access the provisional patent. But how?
On the public portal of the patent office, most of the documents related to the application are made public at the time of publication of the non-provisional patent application. Among these documents, you can access provisional patent documents.
Therefore, it is safe to state that the provisional patent becomes public only at the time of publication of the non-provisional patent application.
For Indian provisional patent applications, you can look at the database of the Indian Patent Office called INPASS.
When does a patent not become public?
After discussing various publication scenarios, now let’s discuss the scenario when the patent is not made public.
Patents consist of technology relating to various technical domains. Sometimes, there comes a patent application that may consist of sensitive technology.
Disclosure of such sensitive technology to the public may be prejudicial to the interests of a country. In such a situation, it is clear that no country would want the know-how of sensitive technology to fall into the hands of the public.
Since the patent is a territorial right, each country has its own law to govern the patent regime in their country. Almost all of the countries that have their own law to govern the patent regime have provisions to deal with patent applications involving sensitive technology. Under the provisions of patent law, those countries can prohibit the publication of such patent applications.
In this regard, under Indian Patent Act, 1970, it’s Section 4 deals with applications related to atomic energy, and Section 35 deals with secrecy directions.
You should know that all is not lost when such provisions of the law are applied to your patent application. Generally, there are provisions that allow a periodic review of your patent application. Over time, it is possible that your application may get another chance. That is the case when the government decides to revoke the directions imposed on your application as per the review.
So, in this article, we have seen the two stages in which the patent is made public.
In the first stage, we saw that the knowledge contained in the specification of the patent application is made available to the public. That is the event of publication of the patent application. Using this knowledge, the public can further develop the technology to make even better inventions. However, the public can not use, sell, make, or import, etc. the invention freely.
In the second stage, the patent is completely made public. That is, after the expiry of patent rights, the public is free to use the invention any way it wants. Normally, patent rights exist for 20 years to incentivize the inventor.
Further, we discussed the case when the patents are not made public.
Having said that we should keep in mind that patents were designed to encourage innovation that could benefit the world. So, the policies around patents are designed keeping in mind the interests of the inventor, the public, the nation, and the innovation.
In the end, we hope you had a good read. We encourage you to have a look at carefully crafted content for you which can be accessed here.