Question 1

What is the 'infringement test' for dependent claims in patent applications?

Accepted Answer

What is the 'infringement test' for dependent claims in patent applications?

The 'infringement test' is a crucial concept in determining the proper dependency of claims in patent applications. As described in MPEP 608.01(n):

'One test for a proper dependent claim is that the dependent claim must be narrower than the claim(s) from which it depends. In other words, if a dependent claim does not further limit the scope of the claim(s) from which it depends, it is not a proper dependent claim.'

The infringement test states that:

Any subject matter that would infringe the independent claim must also infringe the dependent claim.
If it's possible to infringe the independent claim without infringing the dependent claim, the dependent claim is improper.

This test ensures that dependent claims properly narrow the scope of the claims they depend from, maintaining the hierarchical structure of patent claims.

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Question 2

What are the consequences of not providing a certified translation for a foreign benefit application?

Accepted Answer

Failing to provide a certified translation for a foreign benefit application can have significant consequences. According to MPEP 2304.01(c):

"Any showing of priority that relies on a non-English language application is prima facie insufficient if no certified translation of the application is on file."

This means that without a certified translation, the applicant may not be able to claim the benefit of the foreign application's priority date. Additionally, the MPEP provides a form paragraph (23.19) that examiners may use to notify applicants of potential consequences:

"Failure to provide a certified translation may result in no benefit being accorded for the non-English application."

In essence, the lack of a certified translation can result in the loss of priority benefit, which could impact the patentability of the invention.

To learn more:

certified translation
foreign benefit application
priority claim
patent examination

Question 3

Are certified copies of priority documents required for international design applications at the USPTO?

Accepted Answer

For international design applications, certified copies of priority documents are generally not required to be submitted to the USPTO. The key points are:

Applicants do not need to submit certified copies of priority documents to the USPTO for international design applications.
The USPTO relies on the priority claim information provided through WIPO.
However, the USPTO may require submission of certified copies if the priority claim becomes relevant to examination.

As stated in MPEP 2920.05(d): "Pursuant to 37 CFR 1.55(i), applicants in international design applications are not required to submit certified copies of the priority documents to the USPTO." This provision simplifies the application process for applicants but allows the USPTO to request certified copies if necessary during examination.

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Question 4

How can I submit a certified copy of a priority document in a PCT application?

Accepted Answer

There are several ways to submit a certified copy of a priority document in a PCT application:

File it with the international application at the receiving Office.
Submit it to the International Bureau (IB) or the receiving Office within 16 months from the priority date.
Request the receiving Office to prepare and transmit the certified copy to the IB (if the earlier application was filed with the same Office).
Request the IB to obtain a copy from a digital library.

The MPEP states: "The applicant may file the certified copy of the earlier filed national application together with the international application in the receiving Office for transmittal with the record copy, or alternatively the certified copy may be submitted by the applicant to the IB or the receiving Office not later than 16 months from the priority date or, if the applicant has requested early processing in any designated Office, not later than the time such processing or examination is requested."

For U.S. applications filed on or after August 31, 2007, the RO/US will electronically transmit the certified copy if requested, and the fee for this service has been waived.

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Question 5

Do I need to submit a new certified copy of the foreign application when filing a reissue application?

Accepted Answer

No, you do not need to submit a new certified copy of the foreign application when filing a reissue application, provided that the certified copy was submitted in the original patent application.

According to MPEP 1417: "No additional certified copy of the foreign application is necessary." The section further refers to MPEP § 215 for more information on certified copies of foreign priority documents.

However, it's important to note that while a new certified copy is not required, you must still make the claim for priority in the reissue application. The MPEP states: "A claim for priority to an earlier filing date in a foreign country under 35 U.S.C. 119(a)-(d) must be made in a reissue application, even though such a claim was previously made in the application for the original patent to be reissued."

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Question 6

What is the priority document exchange program and how does it affect the certified copy requirement?

Accepted Answer

The priority document exchange program is a bilateral or multilateral agreement between the USPTO and participating foreign intellectual property offices that allows for the electronic exchange of priority documents. This program can satisfy the requirement for filing a certified copy of a foreign application under certain conditions.

According to 37 CFR 1.55(i), the certified copy requirement will be considered satisfied if:

The foreign application was filed in a participating foreign intellectual property office
The claim for priority is presented in an application data sheet (ADS)
The applicant provides the necessary information for the participating office to provide the USPTO with access to the foreign application
The USPTO receives a copy of the foreign application from the participating office during the pendency of the application and before the patent is granted

This provision can significantly simplify the process of meeting the certified copy requirement for applicants whose priority applications are from participating countries.

For more information on certified copy, visit: certified copy.

For more information on foreign application, visit: foreign application.

For more information on priority document exchange, visit: priority document exchange.

Question 7

How does MPEP 904 guide examiners in determining the field of search?

Accepted Answer

MPEP 904 provides specific guidance for examiners to determine the appropriate field of search:

Analyze the disclosure and claims of the application
Identify the invention and its elements
Consider analogous and pertinent fields
Consult classification resources

The MPEP states: "The examiner's field of search should be broad enough to cover all subject matter which the disclosed or claimed invention would have caused one skilled in the art to investigate." (MPEP 904)

This approach ensures a comprehensive search that covers both the specific invention and related technologies that may contain relevant prior art.

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Question 8

What is a certified abstract of title in patent law?

Accepted Answer

A certified abstract of title is a document that provides official information about the ownership of a patent or patent application. Unlike title reports, which are for internal USPTO use, certified abstracts of title can be requested by the public. The MPEP states: The public can request a certified abstract of title. The fee for this service is set forth at 37 CFR 1.19(b)(4). This document provides a certified summary of the assignment records for a specific patent or application.

For more information on certified abstract of title, visit: certified abstract of title.

For more information on public records, visit: public records.

For more information on USPTO, visit: USPTO.

Question 9

Can I file a certified copy of a foreign application after paying the issue fee?

Accepted Answer

Can I file a certified copy of a foreign application after paying the issue fee?

Yes, you can file a certified copy of a foreign application after paying the issue fee, but there are important considerations. According to MPEP 213.04, "If the claim for priority or the certified copy of the foreign application is filed after the date 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." This means that while you can still file the certified copy, it won't automatically be included in your patent. You would need to request a certificate of correction after the patent issues to have the priority claim recognized. It's always best to file the certified copy before paying the issue fee to avoid this additional step and potential complications.

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Question 10

How does the USPTO handle certified copies for international design applications?

Accepted Answer

How does the USPTO handle certified copies for international design applications?

For international design applications, the USPTO has a specific process for handling certified copies. According to the MPEP:

'For international design applications designating the United States, the certified copy requirement is considered to have been met by the filing of the international design application pursuant to 37 CFR 1.55(m).'

This means that if you file an international design application that designates the United States, you don't need to separately submit a certified copy of the priority document. The filing of the international design application itself fulfills this requirement.

However, it's important to note that this only applies to international design applications. For other types of patent applications claiming priority to a foreign application, you would still need to ensure that a certified copy is filed or retrievable through the priority document exchange program within the specified time period.

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What is the ‘infringement test’ for dependent claims in patent applications?

What are the consequences of not providing a certified translation for a foreign benefit application?

Are certified copies of priority documents required for international design applications at the USPTO?

How can I submit a certified copy of a priority document in a PCT application?

Do I need to submit a new certified copy of the foreign application when filing a reissue application?

What is the priority document exchange program and how does it affect the certified copy requirement?

How does MPEP 904 guide examiners in determining the field of search?

What is a certified abstract of title in patent law?

Can I file a certified copy of a foreign application after paying the issue fee?

How does the USPTO handle certified copies for international design applications?