Patent Publication Versus Patent
This blog entry is directed at people who are not patent practitioners.
People who are not versed in patent law are often confused by terms that patent attorneys and the U.S. Patent and Trademark Office (USPTO) use, and the media is no exception. For example, a recent CNet article exclaims, "Apple patents headset MP3 player" and points to U.S. Patent Publication No. 20090268921. However Apple merely has a "patent pending."
In terms of assertable property rights, a patent publication is far from a patent. A patent publication is merely a publication of a patent application that the USPTO generally publishes 18 months after the earliest "priority date" or filing date of a patent application. It cannot be asserted against an alleged infringer. (For the sake of simplicity and to prevent further confusion, I will not discuss "provisional rights" which begin on the patent publication date, but cannot be asserted until the USPTO grants a patent.)
The USPTO grants an assertable patent only after the applicant successfully "prosecutes" the patent application, which requires a USPTO patent examiner to do a prior art search and examine the applicant's patent claims. This prosecution process may involve several communications between the patent examiner and the inventors or their representative, e.g., to narrow the scope of the claims. In complete contrast, a patent application often publishes as a patent application before it has been examined, as was the case in this Apple application.
Thus, while Apple may have filed a patent application directed to a headset MP3 player, Apple has not yet patented it.
I completely agree that this is one of the greatest sources of confusion for people working outside the patent field. I think the first time I noticed it was in this blog entry from 2007:
http://www.engadget.com/2007/03/04/zune-watch-out-apple-patented-doubleshot/ . I also frequently note it in conjunction with articles about overly broad patents. The author will use a published application to prop up his rhetorical point about how "soon you won't be able to get dressed without violating a patent!" or similar hyperbole, not realizing that the application they posted will probably be whittled down to a shadow of its former self in the examination process, assuming it is ever granted at all. I don't think there's much we can do to inform the unconcerned public about this issue. Our best option, in my opinion, is to hammer the error home to the author wherever we see it in hopes that they learn the difference! Thanks for the great post.
Ryan, the confusion continues. I see it several times every week in not just Internet posts, but also in traditional media.