Article to be published in Science, January 2015: "Disclosing patents' secrets."

A post at phys.org on the upcoming publication in Science begins:


Common wisdom and prior economic research suggest that an inventor filing a patent would want to keep the technical know-how secret as long as possible. But a new study of nearly 2 million patents in the United States shows that inventors are not as concerned with secrecy as previously thought.



Certain text in the article is problematic:


In 2000, the length of time that inventors could keep patents secret after filing was cut in half. The American Inventors Protection Act (AIPA) was passed into law that year, requiring publication of patent applications 18 months after first filing. Prior to 2000, the applications of inventors filed only in the U.S. were kept secret and made public after approval, typically 36 months after filing.





The key change in the law was that applications normally would be published 18 months after the priority case, whether or NOT the application was allowed. Under the earlier law, "not allowed" applications were not published at all.
Thus, for "not allowed" cases, the "secret" could be kept, in comparison to the text: the length of time that inventors could keep patents secret after filing was cut in half.

Separately, the post did not seem to mention the matter of pre-grant damages. A benefit of publication is that the patentee may seek past damages for infringement that happened prior to issuance of the patent and after the publication of the patent application.





link to phys.org post: http://phys.org/news/2015-01-inventors-reveal-secret-sauce-patent.html

Relevant text of regulation:


37 C.F.R. 1.213 Nonpublication request.

(a) If the invention disclosed in an application has not been and will not be the subject of an application filed in another country, or under a multilateral international agreement, that requires publication of applications eighteen months after filing, the application will not be published under 35 U.S.C. 122(b) and § 1.211 provided:
(1) A request (nonpublication request) is submitted with the application upon filing;
(2) The request states in a conspicuous manner that the application is not to be published under 35 U.S.C. 122(b);
(3) The request contains a certification that the invention disclosed in the application has not been and will not be the subject of an application filed in another country, or under a multilateral international agreement, that requires publication at eighteen months after filing; and
(4) The request is signed in compliance with § 1.33(b).
*****

If the invention disclosed in an application filed under 35 U.S.C. 111(a) has not been and will not be the subject of a foreign or international application filed in another country, or under a multilateral international agreement, that requires publication of applications eighteen months after filing (e.g., a counterpart PCT application), applicants may request that the application filed under 35 U.S.C. 111(a) not be published by filing a nonpublication request under 37 CFR 1.213(a). The Office will not publish an application filed under 35 U.S.C. 111(a) with a nonpublication request in compliance with the following:

(A) The request for nonpublication under 37 CFR 1.213(a) must be submitted with the application upon filing (this is a statutory requirement and cannot be waived);
(B) The request for nonpublication must state in a conspicuous manner that the application is not to be published under 35 U.S.C. 122(b) (see Form PTO/SB/35 in MPEP § 1135);
(C) The request must contain a certification that the invention disclosed in the application has not been and will not be the subject of an application filed in another country, or under a multilateral international agreement, that requires eighteen-month publication. Before making the certification, the person who signs the certification must make an actual inquiry to determine whether the certification under 35 U.S.C. 122(b)(2)(B)(i) and 37 CFR 1.213(a)(3) can be appropriately made (see I. REQUIREMENTS PRIOR TO FILING A NONPUBLICATION REQUEST, below); and
(D) The request is signed in compliance with 37 CFR 1.33(b).
If applicant filed a nonpublication request and later decides to file a counterpart foreign or international application in another country, or under a multilateral agreement, that requires eighteen-month publication, applicant must either: (1) rescind the nonpublication request before filing such foreign or international application; or (2) notify the Office of such filing no later than 45 days after the filing date of the counterpart foreign or international application. See MPEP §§ 1123 and 1124.

I. REQUIREMENTS PRIOR TO FILING A NONPUBLICATION REQUEST
A nonpublication request is not appropriate unless the person who is signing the nonpublication request has made an actual inquiry consistent with the requirements of 37 CFR 11.18(b) to determine that:

(A) The application under 35 U.S.C. 111(a)has not been the subject of a foreign or international application filed in another country, or under a multilateral international agreement, that requires publication of applications at eighteen months after filing (e.g., a counterpart PCT application); and
(B) The applicant’s intent at the time the nonpublication request is being filed is that the application under 35 U.S.C. 111(a)will not be the subject of a foreign or international application filed in another country, or under a multilateral international agreement, that requires publication of applications at eighteen months after filing.