What is the window for finding prior art on a patent application?

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I know that patents are not part of the public purview until months or years after the patent application is filed. Once these patent applications are made public, for how long can I submit prior art (or ask other people to help me find prior art)?

What is the typical timeframe for when the U.S. Patent & Trademark Office will make a decision about any given patent, and are there any categories of patent applications that are processed faster than others?

Laura

Posted 2012-09-18T16:14:19.520

Reputation: 253

Answers

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A patent application can be contested by a third party via prior art submission during a window that usually lasts more than 6 months.

That window opens when a patent application is published -- usually 18 months after the application is first filed. The window closes when:

a) The inventor receives a Notice of Allowance (NOA)

OR If no NOA has been sent, the window closes at the later of the following two events:

b) The application has been published for 6 months

c) The USPTO has completed the first office action on the merits of that application

In other words:

Unless a patent is issued very quickly, third parties have at least six months from publication to file a preissuance submission.

See page 83 here (pdf) for full rules.

samthebrand

Posted 2012-09-18T16:14:19.520

Reputation: 739

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Are you aware of any other ways to submit prior art after that window has closed, but still before the patent has been approved/issued? The only one I'm aware of is submitting prior art to the applicant, given they have the duty to disclose (37 CFR 1.56). I've also seen successful examples where 3rd party attorneys call the examiner, although examiners are not supposed to interact: http://patentlyo.com/patent/2011/04/third-party-attempts-to-protest-or-otherwise-oppose-the-grant-of-a-published-application.html

sdot 2016-08-09T17:25:04.620

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The other answers address submitting prior art before the patent is allowed.
Additionally, you can submit prior art after the patent issues anytime during the life of the patent. If it is relevant, the patent office will attach the submitted prior art to the official file on the patent. Anyone needing to defend themselves against assertion of the patent will download the file and get a copy of this submitted prior art. see http://www.uspto.gov/web/offices/pac/mpep/s2202.html It could prove valuable, should someone want to have the patent reexamined.

Ted Weverka

Posted 2012-09-18T16:14:19.520

Reputation: 56

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If you want to make a third-party submission of prior art in a pending patent application, looking at the statute is not very useful. What you want to see is how the USPTO implemented the statute. Look here The relevant Patent Rule is 37 CFR 1.290.

Some art units at the USPTO take longer than others to examine applications. Some mechanical cases issue in 12 months. Some business methods and software patents take 5 years. The reference you want is the most recent electronic issue of the Official Gazette. Browse to the most recent issue and look to the bottom for Patent Technology Centers. That listing gives the average filing date for a first office action in the last three months.

Louis Iselin

Posted 2012-09-18T16:14:19.520

Reputation: 382