Question 1

What is the significance of the four-month time period in filing a certified copy?

Accepted Answer

What is the significance of the four-month time period in filing a certified copy?

The four-month time period is significant in filing a certified copy of a foreign application for priority claims. According to MPEP 213.04, "If the certified copy is not filed within the four-month period, the certified copy must be accompanied by a petition including a showing of good and sufficient cause for the delay and the petition fee." This means that if you file the certified copy within four months of the actual filing date of the application (or entry into the national stage for PCT applications), you don't need to provide any explanation or pay additional fees. However, if you miss this four-month window, you'll need to file a petition explaining the delay and pay an additional fee. This rule encourages prompt filing of priority documents and helps streamline the examination process.

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Question 2

What happens if a certified copy of the priority document is not filed within the time limit in a U.S. national stage application?

Accepted Answer

If a certified copy of the priority document is not filed within the time limit in a U.S. national stage application, the following consequences may occur:

The right to priority may be lost if the certified copy is not filed within the time period set in 37 CFR 1.55.
However, if the certified copy is filed after the time period set in 37 CFR 1.55 but during the pendency of the application, the right to priority may be restored under certain conditions.
According to MPEP 213.06, 'If the certified copy 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.'

It's crucial to file the certified copy within the specified time limit to avoid potential complications in claiming priority.

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U.S. patent application

Question 3

What is the deadline for submitting certified copies in a national stage application?

Accepted Answer

What is the deadline for submitting certified copies in a national stage application?

The deadline for submitting certified copies in a national stage application (35 U.S.C. 371) is as follows:

Certified copies must be filed within the time limit set in 37 CFR 1.55(f).
This is typically within the later of 4 months from the actual filing date of the application or 16 months from the filing date of the prior foreign application.

The MPEP 213.06 states: 'A certified copy of the foreign application must be filed within the time limit set forth in 37 CFR 1.55(f).' It's important to note that this requirement applies unless the certified copy was previously filed in the international application and the requirements of PCT Rule 17.1(a), (b), or (b-bis) have been met.

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Question 4

How does the ISA handle inaccessible documents cited in an international application?

Accepted Answer

When an international application cites a document that is not published or accessible to the International Searching Authority (ISA), and this document is essential for understanding the invention, the ISA follows a specific procedure:

The ISA may postpone the search
The ISA requests that the applicant provide a copy of the document, if possible within the time limits for preparing the international search report
If no copy is received, the ISA attempts to carry out the search
If necessary, the ISA indicates that no meaningful search could be carried out or that the search was restricted

As stated in the MPEP:

"If the international application cites a document that is not published or otherwise not accessible to the ISA and the document appears essential to a correct understanding of the invention to the extent that a meaningful international search would not be possible without knowledge of the content of that document, the ISA may postpone the search and request that the applicant first provide first a copy of the document, if possible to do so within the time limits for the preparation of the international search report of the ISA under the PCT."

This procedure balances the need for a comprehensive search with the practical limitations of accessing certain documents, ensuring that the search process can proceed effectively.

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Question 5

What happens if an International Searching Authority (ISA) can't perform a meaningful search on some claims?

Accepted Answer

If an International Searching Authority (ISA) determines that a meaningful search cannot be carried out for some claims, it will:

Search the remaining claims of the international application
Indicate the unsearched claims and reasons in Box No. II of the international search report (Form PCT/ISA/210)

As stated in the MPEP:

"Where only some of the claims will not be searched, the ISA searches the remaining claims of the international application. Any unsearched claims and the reasons why those claims have not been searched are indicated in Box No. II of the international search report (Form PCT/ISA/210)."

This process ensures transparency in the search process while allowing the examination to proceed for the claims that can be searched.

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International Searching Authority
PCT
patent claims
search report

Question 6

How are IBM Technical Disclosure Bulletins used in patent examination?

Accepted Answer

How are IBM Technical Disclosure Bulletins used in patent examination?

IBM Technical Disclosure Bulletins are important publications used in patent examination as prior art. According to MPEP 901.06(d):

"IBM Technical Disclosure Bulletins are available in the Technology Center libraries and in the Scientific and Technical Information Center (STIC). These bulletins, published from 1958 to 1998, are cited as ".T.D.B."."

Patent examiners use these bulletins to search for relevant prior art when evaluating patent applications. They contain technical disclosures that can potentially invalidate or limit the scope of patent claims. Inventors and patent attorneys should be aware of these publications when conducting prior art searches or preparing patent applications.

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Question 7

Can previously considered art raise a substantial new question of patentability?

Accepted Answer

Yes, previously considered art can raise a substantial new question of patentability under certain circumstances. The MPEP 2216 clarifies:

"The substantial new question of patentability may be based on art previously considered by the Office if the reference is presented in a new light or a different way that escaped review during earlier examination."

This provision was introduced by the Patent and Trademark Office Authorization Act of 2002, which allows for a substantial new question to be raised based on "old art" if it is presented in a new context or with a new interpretation. However, simply asking the Office to reconsider old art based on changes in legal standards (such as the KSR decision on obviousness) without presenting the art in a new light is not sufficient to raise a substantial new question of patentability.

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Question 8

What is the purpose of the "How to Search" section in MPEP 904?

Accepted Answer

The "How to Search" section in MPEP 904 provides guidance on conducting effective prior art searches for patent examiners. Its purpose is to:

Outline the process for identifying relevant prior art
Explain how to determine the scope of a search
Describe various search tools and techniques
Emphasize the importance of thorough and efficient searching

As stated in the MPEP: "In all continuing applications, the parent applications should be reviewed for pertinent prior art." This highlights the importance of comprehensive searching, including related applications.

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Question 9

How should a patent examiner outline a field of search?

Accepted Answer

When outlining a field of search, a patent examiner should follow specific guidelines as outlined in MPEP 904.02(a):

"In outlining a field of search, the examiner should note every classification location (i.e. group/subgroup of the Cooperative Patent Classification and/or class/subclass of the U.S. Patent Classification) under the utilized classification system and other organized systems of literature that may have material pertinent to the subject matter as claimed, including those which have been assigned by a foreign Office, another USPTO examiner, or by the classification contractor."

The examiner should include all relevant classification areas, from the broadest combination to the most specific elements, and prioritize the search areas based on the likelihood of finding relevant prior art.

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Question 10

How can I access and search the CPC database?

Accepted Answer

The CPC database can be accessed and searched through various tools provided by the USPTO and EPO. According to MPEP 905.03(a), "The CPC schemes and definitions are available online from the USPTO's website at https://www.uspto.gov/web/patents/classification/cpc/html/cpc.html." To search the CPC database effectively:

Use the USPTO's CPC search tool or the EPO's Espacenet database
Familiarize yourself with the CPC structure and symbols
Utilize keyword searches in combination with CPC symbols for more targeted results
Consider using the CPC definitions to understand the scope of each classification

Remember that the CPC database is regularly updated, so it's important to check for the most recent classifications when conducting your search.

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What is the significance of the four-month time period in filing a certified copy?

What happens if a certified copy of the priority document is not filed within the time limit in a U.S. national stage application?

What is the deadline for submitting certified copies in a national stage application?

How does the ISA handle inaccessible documents cited in an international application?

What happens if an International Searching Authority (ISA) can’t perform a meaningful search on some claims?

How are IBM Technical Disclosure Bulletins used in patent examination?

Can previously considered art raise a substantial new question of patentability?

What is the purpose of the “How to Search” section in MPEP 904?

How should a patent examiner outline a field of search?

How can I access and search the CPC database?