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.

Source: https://www.uspto.gov/web/offices/pac/mpep/s1120.html

"Patent Pending" serves as warning against potential, retroactive infringement but how does one validate that a patent has indeed been filed prior to publication, and the scope of the claims?

The specific problem I'm thinking about relates to a software implementation of what may be understood as a "basic" game patent, in the sense that it is a novel set of fundamental mechanics upon which an array of related games can be expressed. The initial product will represent only one game mode, while the scope of the patent covers modes that will not be initially developed but for which infringement protection will still be sought, pending future development.

Although early publication can be applied for with the USPTO, it take 14 weeks and is not guaranteed...

  • I not sure I fully understand your situation. Are you wanting to publish your own application early (hence the defensive-publications tag and the reference to early publication)? Or are you wanting to obtain another's patent publication before its actually published (hence the reference to 35 USC 122)?
    – Maca
    Commented Dec 30, 2016 at 1:08

1 Answer 1


You don't. Simple as that, until the patent is granted, nobody knows what the scope will be. And as long as it hasn't been published, it is not accessible for the public.

As I understand it you may not use "patent pending" if you have no patent app., but it could be the worst patent app. ever seen and still say patent pending.

For possible infringers this is a problem. They can analyse the patent as soon as it gets published to find the biggest scope of protection and prior art limiting it, but there is always some risk. Thats why they should attack the patent or design around it.

In the end, a patent app. CAN be stronger than a granted patent at scaring possible infringers.

  • My feeling is that we should make the patent public, posting on our company website, prior to USPTO publication, as a courtesy to other game developers. Is that completely meaningless? (It took almost a decade to work out the method and we mainly just want to the breathing room to be able to develop the IP.)
    – DukeZhou
    Commented Dec 30, 2016 at 16:18
  • You could do that. But what do you want to achieve?
    – user18033
    Commented Dec 30, 2016 at 16:22
  • Mostly as a courtesy. We've been play testing for about 3 years, so we have a high degree of confidence this is going to be interest in these games. Partly I don't want indie developers spending a lot of time programming something we're going to aggressively go after. (We'd also rather have them reaching out to us to explore possibilities for collaboration.) It would also be convenient to have the IP public, because nearly all of the extensions of the core method proposed by play testers are already described in detail in the patent.
    – DukeZhou
    Commented Dec 30, 2016 at 16:39
  • You can put everything online. Just remember that you are giving away a possible strategic advantage.
    – user18033
    Commented Dec 30, 2016 at 23:46
  • 1
    Consider putting online only a (partial) summary, that way you can stir the information and its impact
    – user18033
    Commented Dec 31, 2016 at 11:12

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