What is considered ‘material to patentability’ according to the USPTO?
Information is considered ‘material to patentability’ when it meets specific criteria outlined in MPEP 724 and 37 CFR 1.56(b). The USPTO defines it as follows:
Information is material to patentability when it is not cumulative to information already of record or being made of record in the application, and (1) It establishes, by itself or in combination with other information, a prima facie case of unpatentability of a claim; or (2) It refutes, or is inconsistent with, a position the applicant takes in: (i) Opposing an argument of unpatentability relied on by the Office, or (ii) Asserting an argument of patentability.
This definition applies regardless of whether the information is classified as a trade secret, proprietary material, or subject to a protective order. If it meets these criteria, it must be disclosed to the USPTO.
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