Publication of a patent application

If you file a patent application, your invention will not be secret anymore, since each patent application that is alive at the time of publication (see next paragrapgh) gets published. So, you cannot obtain a patent and keep the invention secret at the same time. It just does not work like that. You get an exclusive right in exchange for disclosing a valuable invention that can contribute to the development of our world.

When does the publication take place?

The European patent application is published as soon as possible after the expiry of 18 months from the date of filing or, if a priority was claimed, from the earliest priority date. You may however request earlier publication.* 

You cannot request the publication to take place later.

Is every application published?

All European patent applications that are pending at this time are published. An application that has been finally refused or withdrawn or is deemed withdrawn before completion of the technical preparations for publication, is not published. 

Consequently, should you wish to prevent your application from becoming available to the public, you should withdraw your application a few weeks before the publication.

Why is the date of publication important?

1. Your invention will appear in databases accessible to other people around the world.

   Furthermore, the public, by using the European Patent Register, will have access to the application's bibliographic data and to information about the status of the proceedings.

   This unfortunately also means that fraudulent companies have access to your data as well. See below our important message.

2. Your application will act as prior art against any future patent applications from other applicants for similar inventions.

   This also means that when conducting a prior art search, it is not possible to search for applications that were filed in the last 18 months. Those are not available to the public, not even available to patent attorneys.

3. From the date of publication (of the search report), you have six months to decide whether or not to pursue the application by requesting substantive examination.

   If you request examination, you also have to pay the examination fee.

   If you requested examination before receiving the search report, you will be invited to confirm whether you still wish to proceed. You will also have to file a response and/or amendments to any objections raised in the search opinion.

4. Within 6 months of the publication (of the search report), you must pay the appropriate designation fee.

   By paying the designation fee, all EPC Contracting States are automatically designated. (Currently, there are 39 Contracting States with Montenegro joining from 1 October 2022.)

   At this time, you can also pay extension fee(s), if you wish. By paying an extension fee for an Extension State, you can extend the designation to certain states. For European patent applications filed after 1 October 2022, there is only one Extension State available: Bosnia and Herzegovina.

   At this time, you can also pay validation fee(s), if you wish. By paying these fees, you will be able to validate the patent after grant in these countries. Validation agreements with four of these countries entered into force: Morocco, Republic of Moldova, Tunisia and Cambodia.

5. From the date of publication, the European patent application confers provisional protection on the invention in all the states designated in the application.

   Please note that some Contracting States may make provisional protection conditional upon a translation of the claims.

6. From the date of publication – if the application eventually proceeds to grant – you may claim reasonable compensation from third parties who infringe your patent application.

7. From the date of publication – and until the proceedings are still pending before the EPO – third parties may file observations on the patentability of the invention.

   These observations may be filed online and are free of charge.

Important note:

Patent offices do not charge official fees for the publication. If you receive an invitation to pay a certain fee for the publication of your patent application, it is probably a fake invoice. The invoices often identify your published application by its publication number, publication date, title of the invention, etc., since these are all available in the patent databases after the publication takes place. Please see the WIPO’s notification regarding this matter and sample of such fake invoices here.

* This is defined in Art. 93 EPC:
”The European Patent Office shall publish the European patent application as soon as possible
(a) after the expiry of a period of eighteen months from the date of filing or, if priority has been claimed, from the date of priority, or
(b) at the request of the applicant, before the expiry of that period.”
See the full legal text here.

Author: Zsofia Pintz
Published: August 2020
Updated: July 2023