MPEP § 2407.01 — In a Pending Application (Annotated Rules)
§2407.01 In a Pending Application
This page consolidates and annotates all enforceable requirements under MPEP § 2407.01, including statutory authority, regulatory rules, examiner guidance, and practice notes. It is provided as guidance, with links to the ground truth sources. This is information only, it is not legal advice.
In a Pending Application
This section addresses In a Pending Application. Primary authority: 35 U.S.C. 112, 37 CFR 1.805(a), and 37 CFR 1.802(b). Contains: 2 requirements, 2 prohibitions, 1 guidance statement, and 1 other statement.
Key Rules
Access to Pending Applications
Pursuant to 37 CFR 1.805(a), an applicant is required to notify the Office when it obtains information that the depository possessing a deposit referenced in an application cannot furnish samples of the deposit. When the Office is so informed or otherwise becomes aware that samples of the deposited material cannot be furnished by the depository, the examiner will treat the application as if no deposit existed. A replacement or supplemental deposit must be made if access to the deposited material is necessary to satisfy the requirements for patentability under 35 U.S.C. 112. A replacement or supplemental deposit will be accepted if it meets all the requirements for making an original deposit.
Pursuant to 37 CFR 1.805(a), an applicant is required to notify the Office when it obtains information that the depository possessing a deposit referenced in an application cannot furnish samples of the deposit. When the Office is so informed or otherwise becomes aware that samples of the deposited material cannot be furnished by the depository, the examiner will treat the application as if no deposit existed. A replacement or supplemental deposit must be made if access to the deposited material is necessary to satisfy the requirements for patentability under 35 U.S.C. 112. A replacement or supplemental deposit will be accepted if it meets all the requirements for making an original deposit.
Pursuant to 37 CFR 1.805(a), an applicant is required to notify the Office when it obtains information that the depository possessing a deposit referenced in an application cannot furnish samples of the deposit. When the Office is so informed or otherwise becomes aware that samples of the deposited material cannot be furnished by the depository, the examiner will treat the application as if no deposit existed. A replacement or supplemental deposit must be made if access to the deposited material is necessary to satisfy the requirements for patentability under 35 U.S.C. 112. A replacement or supplemental deposit will be accepted if it meets all the requirements for making an original deposit.
Access to Patent Application Files (MPEP 101-106)
Pursuant to 37 CFR 1.805(a), an applicant is required to notify the Office when it obtains information that the depository possessing a deposit referenced in an application cannot furnish samples of the deposit. When the Office is so informed or otherwise becomes aware that samples of the deposited material cannot be furnished by the depository, the examiner will treat the application as if no deposit existed. A replacement or supplemental deposit must be made if access to the deposited material is necessary to satisfy the requirements for patentability under 35 U.S.C. 112. A replacement or supplemental deposit will be accepted if it meets all the requirements for making an original deposit.
Deposit of Biological Materials
It should be noted that in a pending application, an applicant need not replace the identical material previously deposited, but may make an original deposit of a biological material which is specifically identified and described in the application as filed. Whether this alternative deposit will meet the requirements of 35 U.S.C. 112 with respect to the claimed subject matter must be resolved by the examiner on a case-by-case basis. The conditions in 37 CFR 1.802(b) and 37 CFR 1.804(b) must be satisfied.
35 U.S.C. 112 – Disclosure Requirements
It should be noted that in a pending application, an applicant need not replace the identical material previously deposited, but may make an original deposit of a biological material which is specifically identified and described in the application as filed. Whether this alternative deposit will meet the requirements of 35 U.S.C. 112 with respect to the claimed subject matter must be resolved by the examiner on a case-by-case basis. The conditions in 37 CFR 1.802(b) and 37 CFR 1.804(b) must be satisfied.
Time of Making Deposit
It should be noted that in a pending application, an applicant need not replace the identical material previously deposited, but may make an original deposit of a biological material which is specifically identified and described in the application as filed. Whether this alternative deposit will meet the requirements of 35 U.S.C. 112 with respect to the claimed subject matter must be resolved by the examiner on a case-by-case basis. The conditions in 37 CFR 1.802(b) and 37 CFR 1.804(b) must be satisfied.
Citations
| Primary topic | Citation |
|---|---|
| 35 U.S.C. 112 – Disclosure Requirements Access to Patent Application Files (MPEP 101-106) Access to Pending Applications Deposit of Biological Materials Time of Making Deposit | 35 U.S.C. § 112 |
| 35 U.S.C. 112 – Disclosure Requirements Deposit of Biological Materials Time of Making Deposit | 37 CFR § 1.802(b) |
| 35 U.S.C. 112 – Disclosure Requirements Deposit of Biological Materials Time of Making Deposit | 37 CFR § 1.804(b) |
| Access to Patent Application Files (MPEP 101-106) Access to Pending Applications | 37 CFR § 1.805(a) |
Source Text from USPTO’s MPEP
This is an exact copy of the MPEP from the USPTO. It is here for your reference to see the section in context.
Official MPEP § 2407.01 — In a Pending Application
Source: USPTO2407.01 In a Pending Application [R-07.2015]
Pursuant to 37 CFR 1.805(a), an applicant is required to notify the Office when it obtains information that the depository possessing a deposit referenced in an application cannot furnish samples of the deposit. When the Office is so informed or otherwise becomes aware that samples of the deposited material cannot be furnished by the depository, the examiner will treat the application as if no deposit existed. A replacement or supplemental deposit must be made if access to the deposited material is necessary to satisfy the requirements for patentability under 35 U.S.C. 112. A replacement or supplemental deposit will be accepted if it meets all the requirements for making an original deposit.
It should be noted that in a pending application, an applicant need not replace the identical material previously deposited, but may make an original deposit of a biological material which is specifically identified and described in the application as filed. Whether this alternative deposit will meet the requirements of 35 U.S.C. 112 with respect to the claimed subject matter must be resolved by the examiner on a case-by-case basis. The conditions in 37 CFR 1.802(b) and 37 CFR 1.804(b) must be satisfied.