What is the “Essential Material” exception for incorporating material by reference?

What is the “Essential Material” exception for incorporating material by reference?

The “Essential Material” exception allows certain types of material to be incorporated by reference, even if not present in the application as filed. According to MPEP 2163.07(b):

“Essential material” may be incorporated by reference, but only by way of an incorporation by reference to a U.S. patent or U.S. patent application publication, which patent or patent application publication does not itself incorporate such essential material by reference.

This exception is limited to:

• Material necessary to provide written description support for the claimed invention
• Material necessary to describe the structure, material, or acts for performing a claimed function

It’s important to note that this exception is narrowly applied and subject to specific requirements outlined in 37 CFR 1.57(d).

To learn more:

• Essential Material
• Incorporation by Reference
• Patent Application
• Written Description