What is the difference between third-party submissions under 37 CFR 1.290 and protests under 37 CFR 1.291?

This page is an FAQ based on guidance from the Manual of Patent Examining Procedure. It is provided as guidance, with links to the ground truth sources. This is information only: it is not legal advice.

There are several key differences between third-party submissions and protests:

• Timing: Third-party submissions under 37 CFR 1.290 can be made in published patent applications if they meet the timing requirements. Protests under 37 CFR 1.291 are more restricted after publication.
• Content: Third-party submissions are limited to printed publications. Protests can include other information adverse to patentability and arguments.
• Explanation of Relevance: Third-party submissions require a “concise description of relevance” for each document. Protests require a “concise explanation of the relevance” which can include arguments against patentability.

The MPEP states: “Unlike the concise description of relevance for a third-party submission under 37 CFR 1.290, which is limited to a description of a document’s relevance, the concise explanation for a protest under 37 CFR 1.291 allows for arguments against patentability.“