Question 1

What is the "same or corresponding technical feature" in unity of invention?

Accepted Answer

What is the "same or corresponding technical feature" in unity of invention?

The "same or corresponding technical feature" in unity of invention refers to the technical relationship among the claimed inventions that defines a contribution over the prior art. According to MPEP 1850:

"The expression 'special technical features' is defined in PCT Rule 13.2 as meaning those technical features that define a contribution which each of the inventions, considered as a whole, makes over the prior art."

This concept is crucial in determining whether multiple inventions in an international application have unity of invention. The inventions must be linked by at least one common or corresponding special technical feature to be considered as having unity of invention.

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Question 2

How does streamlined analysis differ from the full Alice/Mayo test?

Accepted Answer

How does streamlined analysis differ from the full Alice/Mayo test?

The streamlined analysis differs from the full Alice/Mayo test in several key ways:

Scope: Streamlined analysis is a quick assessment, while the Alice/Mayo test is a more comprehensive evaluation.
Application: Streamlined analysis is used for claims that clearly do not tie up a judicial exception, whereas the Alice/Mayo test is applied to all claims that may involve abstract ideas, laws of nature, or natural phenomena.
Steps: Streamlined analysis doesn't require going through all the steps of the Alice/Mayo test, which includes identifying judicial exceptions and evaluating additional elements.
Outcome: Streamlined analysis leads directly to eligibility, while the Alice/Mayo test may result in either eligibility or ineligibility.

As stated in MPEP 2106.06: "A streamlined eligibility analysis can be used for a claim that may or may not recite a judicial exception but, when viewed as a whole, clearly does not seek to tie up any judicial exception such that others cannot practice it." This approach allows for more efficient examination of clearly eligible claims.

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Question 3

What happens if a certified copy of a foreign application is not filed for a design patent priority claim?

Accepted Answer

If a certified copy of the foreign application is not filed for a design patent priority claim, it can affect the validity of the priority claim. According to MPEP 1504.10:

"In the case of a design application, the certified copy must be filed during the pendency of the application, unless filed with a petition under 37 CFR 1.55(g) together with the fee set forth in 37 CFR 1.17(g), that includes a showing of good and sufficient cause for the delay in filing the certified copy of the foreign application."

If the certified copy is not filed in time, the priority claim may not be recognized. Furthermore, if the certified copy is filed after the issue fee is paid, the patent will not include the priority claim unless corrected by a certificate of correction under 35 U.S.C. 255 and 37 CFR 1.323. It's crucial for applicants to ensure timely filing of the certified copy to secure their priority claim.

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Question 4

What is required when submitting a certified copy of a foreign application for priority purposes?

Accepted Answer

When submitting a certified copy of a foreign application for priority purposes, the following requirements apply:

If the certified copy is not in English, a translation is required
The translation must be of the certified copy of the foreign application as filed
The translation must be filed together with a statement that the translation of the certified copy is accurate

The MPEP states: "When the examiner requires the filing of the certified copy, the translation should also be required at the same time. If an English language translation of a non-English language foreign application is required, the translation must be that of the certified copy (of the foreign application as filed) and it must be filed together with a statement that the translation of the certified copy is accurate." (MPEP 216)

Question 5

What happens if a certified copy is not received within the time period set in 37 CFR 1.55(f)?

Accepted Answer

What happens if a certified copy is not received within the time period set in 37 CFR 1.55(f)?

If a certified copy is not received within the time period set in 37 CFR 1.55(f), the USPTO will send a Notice of Allowance and Issue Fee Due (Notice of Allowance) with a requirement for the certified copy. As stated in the MPEP:

'If a certified copy of the foreign application is not filed within the time period specified in 37 CFR 1.55(f) and the exceptions in 37 CFR 1.55(h), (i), and (j) are not applicable, the certified copy of the foreign application must be accompanied by a petition including a showing of good and sufficient cause for the delay and the petition fee set forth in 37 CFR 1.17(g).'

This means that if you miss the deadline, you'll need to file a petition explaining the delay and pay an additional fee. It's crucial to submit the certified copy or ensure it's retrievable through the priority document exchange program to avoid complications in the patent application process.

Question 6

What is the "machine-or-transformation test" in patent eligibility?

Accepted Answer

The "machine-or-transformation test" is a useful tool for determining whether a claimed invention is patent-eligible under 35 U.S.C. 101. According to MPEP 2106.05(c), this test states that:

"A claimed process is patent-eligible under § 101 if: (1) it is tied to a particular machine or apparatus, or (2) it transforms a particular article into a different state or thing."

However, it's important to note that while this test can be helpful, it is not the sole test for determining patent eligibility. The Supreme Court has clarified that the machine-or-transformation test is a useful and important clue or investigative tool, but it is not the sole test for deciding whether an invention is a patent-eligible process under § 101.

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Question 7

How do 'See or Search' notes in USPC help in understanding the limits of a class or subclass?

Accepted Answer

'See or Search' notes in the United States Patent Classification (USPC) system play a crucial role in helping users understand the boundaries and relationships between different classes and subclasses. According to MPEP 902.02(a):

"'See or Search' notes are helpful in explaining the limits of a class or subclass. They generally state the relationship to, and difference from, other identified subject matter collections."

These notes help in several ways:

Defining boundaries: They clarify where one classification ends and another begins.
Highlighting relationships: They show how different classifications are connected or related.
Guiding decisions: As the MPEP states, "Each 'See or Search' note helps a user reach a decision either to include or exclude an area containing relevant subject matter."
Expanding search scope: They suggest additional areas to search, ensuring a more comprehensive prior art search.

By utilizing these notes effectively, patent examiners and attorneys can better navigate the complex landscape of patent classifications and conduct more thorough and accurate searches.

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Question 8

Can the transitional phrase "consisting of" ever be interpreted as open-ended in patent claims?

Accepted Answer

Can the transitional phrase "consisting of" ever be interpreted as open-ended in patent claims?

While "consisting of" is generally considered a closed transitional phrase, there are rare circumstances where it might be interpreted as open-ended:

Dependent claims: A dependent claim using "consisting of" might be interpreted as open-ended if its base claim uses an open-ended transition.
Specification context: If the specification clearly indicates an open-ended interpretation, this might influence the claim's scope.

However, these are exceptional cases. The MPEP 2111.03 emphasizes:

"The transitional phrase 'consisting of' excludes any element, step, or ingredient not specified in the claim."

In general, "consisting of" is treated as a closed transition, limiting the claim to only the specified elements. Examiners and practitioners should be cautious about interpreting "consisting of" as open-ended without clear and compelling evidence from the specification or prosecution history.

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Question 9

How does an examiner determine if there is a serious search and/or examination burden for subcombinations?

Accepted Answer

An examiner determines if there is a serious search and/or examination burden for subcombinations by considering several factors. According to MPEP 806.05(d):

"A serious search burden can be evidenced by separate classification, status, or field of search and a serious examination burden can be evidenced by, for example, non-prior art issues relevant to one invention that are not relevant to the other invention. See MPEP § 808.02."

This means the examiner must provide specific reasons why searching and examining all claimed inventions would be burdensome, such as:

The inventions have acquired separate status in the art due to their recognized divergent subject matter
The inventions require different field of search (e.g., searching different classes/subclasses or electronic resources, or employing different search strategies or search queries)
The prior art applicable to one invention would not likely be applicable to another invention

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Question 10

What automated search tools are available to patent examiners for accessing foreign patents?

Accepted Answer

Patent examiners have access to several automated search tools for accessing foreign patents:

Examiner's Automated Search Tool (EAST)
Web-based Examiner's Search Tool (WEST)
Foreign Patent Access System (FPAS)
Derwent World Patents index (available on EAST and WEST)

The MPEP states: The foreign patents so obtained are available to examiners from the USPTO's automated search tools such as the Examiner's Automated Search Tool (EAST), the Web-based Examiner's Search Tool (WEST), the Foreign Patent Access System (FPAS), and from the Foreign Patents Service Center in STIC.

These tools provide examiners with efficient access to a vast collection of foreign patent documents, enhancing their ability to conduct comprehensive prior art searches.

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What is the “same or corresponding technical feature” in unity of invention?

How does streamlined analysis differ from the full Alice/Mayo test?

What happens if a certified copy of a foreign application is not filed for a design patent priority claim?

What is required when submitting a certified copy of a foreign application for priority purposes?

What happens if a certified copy is not received within the time period set in 37 CFR 1.55(f)?

What is the “machine-or-transformation test” in patent eligibility?

How do ‘See or Search’ notes in USPC help in understanding the limits of a class or subclass?

Can the transitional phrase “consisting of” ever be interpreted as open-ended in patent claims?

How does an examiner determine if there is a serious search and/or examination burden for subcombinations?

What automated search tools are available to patent examiners for accessing foreign patents?