35 U.S.C. · Part II · Chapter 11, Application for patent
35 U.S.C. 122: Confidential status of applications; publication of patent applications
In plain English
US applications are kept confidential until they are published (section 122(a)). Most nonprovisional utility applications are published promptly after 18 months from the earliest filing date for which benefit is claimed, which is usually the priority or provisional date. An applicant can ask for earlier publication.
Some applications are never published: applications that are no longer pending, those under a secrecy order, provisionals and design applications. An applicant can also avoid publication by filing a nonpublication request at filing, certifying that the invention has not been and will not be the subject of a foreign or PCT application that publishes at 18 months. The request can be rescinded at any time. If the applicant later files abroad, the USPTO must be told within 45 days or the application is regarded as abandoned.
Publication matters beyond transparency. A published application becomes prior art under section 102(a)(2) as of its effective filing date, and it starts the provisional rights period under section 154(d), during which a reasonable royalty can be recovered once the patent issues if the issued claims are substantially identical to the published ones.
Section 122(c) bars protests and pre-issuance opposition after publication without the applicant's written consent. Section 122(e) instead lets any third party submit patents, published applications and other printed publications with a concise description of their relevance, before the earlier of the notice of allowance or the later of 6 months after publication and the first rejection.
Annotation by Raj Sutariya, Co-founder, PatentAssist.ai. General information, not legal advice; the statute below governs.
Text of 35 U.S.C. 122
Current text, quoted from the official United States Code.
(a) Confidentiality.— Except as provided in subsection (b), applications for patents shall be kept in confidence by the Patent and Trademark Office and no information concerning the same given without authority of the applicant or owner unless necessary to carry out the provisions of an Act of Congress or in such special circumstances as may be determined by the Director.
(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.
(B) (i) If an applicant makes a request upon filing, certifying that the invention disclosed in the application has not and will not be the subject of an application filed in another country, or under a multilateral international agreement, that requires publication of applications 18 months after filing, the application shall not be published as provided in paragraph (1).
(ii) An applicant may rescind a request made under clause (i) at any time.
(iii) An applicant who has made a request under clause (i) but who subsequently files, in a foreign country or under a multilateral international agreement specified in clause (i), an application directed to the invention disclosed in the application filed in the Patent and Trademark Office, shall notify the Director of such filing not later than 45 days after the date of the filing of such foreign or international application. A failure of the applicant to provide such notice within the prescribed period shall result in the application being regarded as abandoned.
(iv) If an applicant rescinds a request made under clause (i) or notifies the Director that an application was filed in a foreign country or under a multilateral international agreement specified in clause (i), the application shall be published in accordance with the provisions of paragraph (1) on or as soon as is practical after the date that is specified in clause (i).
(v) If an applicant has filed applications in one or more foreign countries, directly or through a multilateral international agreement, and such foreign filed applications corresponding to an application filed in the Patent and Trademark Office or the description of the invention in such foreign filed applications is less extensive than the application or description of the invention in the application filed in the Patent and Trademark Office, the applicant may submit a redacted copy of the application filed in the Patent and Trademark Office eliminating any part or description of the invention in such application that is not also contained in any of the corresponding applications filed in a foreign country. The Director may only publish the redacted copy of the application unless the redacted copy of the application is not received within 16 months after the earliest effective filing date for which a benefit is sought under this title. The provisions of section 154(d) shall not apply to a claim if the description of the invention published in the redacted application filed under this clause with respect to the claim does not enable a person skilled in the art to make and use the subject matter of the claim.
(c) Protest and Pre-Issuance Opposition.— The Director shall establish appropriate procedures to ensure that no protest or other form of pre-issuance opposition to the grant of a patent on an application may be initiated after publication of the application without the express written consent of the applicant.
(d) National Security.— No application for patent shall be published under subsection (b)(1) if the publication or disclosure of such invention would be detrimental to the national security. The Director shall establish appropriate procedures to ensure that such applications are promptly identified and the secrecy of such inventions is maintained in accordance with chapter 17.
(e) Preissuance Submissions by Third Parties.—
(1) In general.— Any third party may submit for consideration and inclusion in the record of a patent application, any patent, published patent application, or other printed publication of potential relevance to the examination of the application, if such submission is made in writing before the earlier of—
(A) the date a notice of allowance under section 151 is given or mailed in the application for patent; or
(B) the later of—
(i) 6 months after the date on which the application for patent is first published under section 122 by the Office, or
(ii) the date of the first rejection under section 132 of any claim by the examiner during the examination of the application for patent.
(2) Other requirements.— Any submission under paragraph (1) shall—
(A) set forth a concise description of the asserted relevance of each submitted document;
(B) be accompanied by such fee as the Director may prescribe; and
(C) include a statement by the person making such submission affirming that the submission was made in compliance with this section.
Practical notes
A nonpublication request is only worth filing if you are sure you will never file abroad, because almost every foreign route publishes at 18 months anyway. The cost of forgetting the 45-day notice is abandonment. The application can be revived only by petition under 37 CFR 1.137 on the basis of unintentional delay (MPEP 1124).
Where foreign applications contain less than the US application, section 122(b)(2)(B)(v) and 37 CFR 1.217 let you publish a redacted copy limited to what was filed abroad. Provisional rights do not apply to a claim that the redacted publication does not enable.
Third parties who know of relevant prior art can use 37 CFR 1.290 submissions, which are cheaper than a post-grant challenge. Applicants should expect them in crowded fields and treat each submitted document like art the examiner found.
Related rules and guidance
- 37 CFR
- § 1.14, § 1.211, § 1.213, § 1.217, § 1.219, § 1.290, § 1.291
- MPEP
- 101, 103, 1120, 1122, 1124, 1134
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All annotated sections of 35 U.S.C.
Statute text from the United States Code published by the Office of the Law Revision Counsel of the U.S. House of Representatives (uscode.house.gov). Text contains those laws in effect through Public Law 119-124 (October 15, 2026). Editorial notes and footnotes are omitted. The annotations are general information, not legal advice; check the official text and a registered patent practitioner before relying on them.