A submarine patent is a
patent A patent is a type of intellectual property that gives its owner the legal right to exclude others from making, using, or selling an invention for a limited period of time in exchange for publishing an enabling disclosure of the invention."A p ...
whose issuance and publication are intentionally delayed by the applicant for a long time, which can be several years, or a decade.U.S. Committee on the Judiciary, Calendar No. 563, 110th Congress Report, 2d Session, U.S Senate, 110–259, The Patent Reform Act of 2007, January 24, 2008
footnote 112.
This strategy requires a patent system where, first, patent applications are not published, and, second, patent term is measured from grant date, not from priority or filing date. In the United States, patent applications filed before November 2000 were not published and remained secret until they were granted. Analogous to a
submarine A submarine (or sub) is a watercraft capable of independent operation underwater. It differs from a submersible, which has more limited underwater capability. The term is also sometimes used historically or colloquially to refer to remotely op ...
, submarine patents could remain "under water" for long periods until they "emerged", surprising the relevant market. Persons or companies making use of submarine patents are sometimes referred to as patent pirates. The phrase is occasionally used more generally for any patent used in
patent ambush A patent ambush occurs when a member of a standard-setting organization withholds information, during participation in development and setting a standard, about a patent that the member or the member's company owns, has pending, or intends to file, ...


After the
United States The United States of America (U.S.A. or USA), commonly known as the United States (U.S. or US) or America, is a country Continental United States, primarily located in North America. It consists of 50 U.S. state, states, a Washington, D.C., ...
signed the
TRIPS Agreement The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) is an international legal agreement between all the member nations of the World Trade Organization (WTO). It establishes minimum standards for the regulation by nat ...
of the
WTO The World Trade Organization (WTO) is an intergovernmental organization that regulates and facilitates international trade. With effective cooperation in the United Nations System, governments use the organization to establish, revise, and e ...
in 1995, the standard patent term of 20 years under
United States patent law Under United States law, a patent is a right granted to the inventor of a (1) process, machine, article of manufacture, or composition of matter, (2) that is new, useful, and non-obvious. A patent is the right to exclude others, for a limite ...
has been measured from the original filing or priority date, rather than (as was previously the case) the date of issuance. This has significantly reduced the previous potential for submarine patent practices. Some submarine patents may also result from pre-1995 filings that have yet to be granted and will remain unpublished until issuance. Submarine patents are also weaker in jurisdictions such as US Federal Courts, in which they may be considered to be a procedural '' laches'': a delay in enforcing one's rights that causes those rights to be lost. In the past, when the life of a U.S. patent was 17 years from the date it was granted, submarine patents could issue decades after the initial filing date. Therefore, an applicant for a U.S. patent could benefit by delaying the issuance, and thus expiration date, of a patent through the simple, but relatively costly, expedient of filing a succession of continuation applications. Some submarine patents emerged as much as 40 years after the date of filing of the corresponding application. During the extended prosecution period the claims of the patent could be modified to more closely match whatever technology or products had become the industry standard. Prior to changes in US patent law in 1995 and 1999, the content of patent applications was kept secret during the patent approval phase. Currently, the majority of U.S. patent applications are published within 18 months of the filing date
35 U.S.C. 122
. However, the applicant can explicitly certify that they do not intend to file a corresponding patent outside the U.S. at the time they file the patent, and keep the application secret. The applicant can change their mind within the first year, but the application is then published. For continuation applications which claim priority to a previously filed application, the publication is six months after the new filing date. The changes to U.S. patent law that introduced publication at 18 months also changed the duration of the patent to 20 years from the filing date of the earliest patent application in any chain of continuation patent applications. As a result, there is little benefit in postponing the grant of the patent. The enforceable life of the patent can no longer be shifted into the period when a technology has become more widely adopted, and the patent applicant must abandon the chance of foreign patent protection if he is to maintain patent secrecy beyond the 18-month period. In a 2006 report the
National Academy of Sciences The National Academy of Sciences (NAS) is a United States nonprofit, non-governmental organization. NAS is part of the National Academies of Sciences, Engineering, and Medicine, along with the National Academy of Engineering (NAE) and the Na ...
has recommended that "in all cases, applications should be published during patent examinations".

Notable submarine patent owners

A notable case of a single submarine patent is the George B. Selden automobile design, applied for in 1879 and issued in 1895, which led to the creation of the
Association of Licensed Automobile Manufacturers The Association of Licensed Automobile Manufacturers (ALAM), began as the Manufacturer's Mutual Association (MMA), an organization originally formed to challenge the litigation of the fledgling automobile industry by George B. Selden and the El ...
.Flink, p. 51 "Probably the most absurd action in the history of patent law was the granting of United States patent number 549,160 on November 5, 1895, to George B. Selden. a Rochester, New York, patent lawyer and inventor, for an 'improved road engine' powered by 'a liquid-hydrocarbon engine of the compression type'."Flink, p. 51 "His own patent application was filed in 1879. He then used evasive legal tactics to delay the patent's acceptance until conditions seemed favorable for commercial exploitation." Gilbert Hyatt was awarded a patent claiming an invention pre-dating both TI and Intel, describing a "microcontroller".Hyatt, Gilbert P., "Single chip integrated circuit computer architecture"
Patent 4942516
issued July 17, 1990
The patent was later invalidated, but not before substantial royalties were paid out. He also still has two even wider patents still pending, also dating from the same period. Jerome H. Lemelson filed many applications that became submarine patents. He and his heirs have collected over $1.3 billion (U.S.) in
royalties A royalty payment is a payment made by one party to another that owns a particular asset, for the right to ongoing use of that asset. Royalties are typically agreed upon as a percentage of gross or net revenues derived from the use of an asset o ...
.Susan Hansen
''Breaking the (Bar) Code''
IP Law & Business, March 2004
In 2004 Lemelson's estate was defeated in a notable court case involving
Symbol Technologies Symbol Technologies is an American manufacturer and supplier of mobile data capture and delivery equipment. The company specializes in barcode scanners, mobile computers, RFID systems and Wireless LAN infrastructure. In 2014, Symbol Technologies ...
and Cognex Corporation, which sought (and received) a ruling that 76 claims under Lemelson's machine-vision patents were unenforceable. The plaintiff companies, with the support of dozens of industry supporters, spent millions on this landmark case. The ruling was upheld on September 9, 2005 by a three-judge panel of the U.S. Court of Appeals for the Federal Circuit under the doctrine of '' laches'', citing "unreasonably long … delays in prosecution." Lemelson's estate appealed for a review by the full circuit
en banc In law, an en banc session (; French for "in bench"; also known as ''in banc'', ''in banco'' or ''in bank'') is a session in which a case is heard before all the judges of a court (before the entire bench) rather than by one judge or a smaller ...
. On November 16, 2005, the full court declined to review the case, and, citing "prejudice to the public as a whole", extended the original unenforceability ruling to all claims under the patents in question.The patents at issue are:, , , , , , , , , , , , , .

See also

* After claiming *
Evergreening Evergreening is any of various legal, business, and technological strategies by which producers (often pharmaceutical companies) extend the lifetime of their patents that are about to expire in order to retain revenues from them. Often the practice ...
Patent misuse In United States patent law, patent misuse is a patent holder's use of a patent to restrain trade beyond enforcing the exclusive rights that a lawfully obtained patent provides. If a court finds that a patent holder committed patent misuse, the ...
Patent troll In international law and business, patent trolling or patent hoarding is a categorical or pejorative term applied to a person or company that attempts to enforce patent rights against accused infringers far beyond the patent's actual value or ...
* Term of patent in the United States


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