The difference between a patent and a patent application

Twitter’s pull-to-refresh “patent” made headlines a few months ago. Most people assumed that Twitter already owned a patent. For example, the New York Times:

This includes a somewhat controversial patent that was awarded to Loren Brichter, a former Twitter designer, for the pull-to-refresh feature on a smartphone. Some worried that Twitter would use the patent to sue other app makers that use this popular interaction in apps.

In reality, Twitter merely owns a patent application. There’s a big difference. It drove me crazy, but alas, I had no website to set the record straight. Well, now I do, and here it is.

All patents result from the prosecution of a patent application through the United States Patent and Trademark Office. Patent applications include a description of the invention, some pretty drawings, and claims setting forth the legal bounds of the invention. All of these elements are subject to changes (especially the claims) throughout the prosecution process. Only after a patent examiner has reviewed the application and determined that it meets the requirements for a patent, does the patent application issue as a patent.

Loren Brichter’s pull-to-refresh patent application (Application No. 12/756,574) was filed on April 8, 2010 and assigned to Twitter on September 19, 2010. As of today, this patent application has not yet been acted upon by a patent examiner at the USPTO. That means it is not a patent, may never become a patent, and even if it does, the invention claimed within the patent application may significantly change during prosecution.

As a journalist, how can you determine whether you are looking at a patent application or a patent?  Simple:

  1. Visit the USPTO’s Public PAIR website.
  2. Enter the patent application number (12/345,678) or publication number (20101234567). If you already have a patent number (1,234,567), then it’s a patent.
  3. Check the “Status” field.  If it says “Patented Case,” the patent application has been issued as a patent and the patent number will be listed in the “Patent Number” field below.