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Can someone here please help clarify the following:

For applications that have included a "non-publication request", at what time am I allowed to file 3rd party prior art against them before they get granted?

At the moment, the only applications I've found were the ones that have been published but I would assume (and hope) that there is some avenue to see those that haven't been published yet, so that I can submit prior art against them. Is that accurate?

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Not published means not available for the public to see at all. The AIA 3rd party submission process window opens at publication and closes six months later or at first action on the merits. For an application with a non-publication request that window would seem to never open.

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  • Thanks George - so is there no way to submit prior art to such an application before it gets granted? That seems like a loophole of sorts. Do the examiners compensate by spending more time researching prior art in those cases?
    – aed
    Dec 20, 2013 at 1:50
  • I think it is a loophole that I never thought about before. If an inventor plans to do any foreign filing they can't file a non-publication request. The third party submission is new and there haven't been very many filed. My guess is that examiners do think they normally do a good job searching and don't think a third party submission is the end of the rainbow.
    – George White ♦
    Dec 20, 2013 at 1:59
  • Thanks George - OK, I guess they will probably change this in the future if the 3rd party system picks up. I had read that examiners only have a few hours available to them to do prior art search with their current resources so I think 3rd party submissions can end up being very valuable, particularly for the more complicated patents.
    – aed
    Dec 23, 2013 at 16:08
  • They get about 15-20 hours from picking it up until either allowance or final rejection (usually two rounds of rejection but it isn't really final). But they are specialized by narrow slices of technology which helps. The U.S. Only started publishing applications with the signing of an international treaty a couple of decades ago.
    – George White ♦
    Dec 23, 2013 at 17:40

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