Q: What are the requirements for filing a certified copy of a foreign application in a national stage application?

For national stage applications under 35 U.S.C. 371 , the requirements for filing a certified copy of a foreign application are outlined in 37 CFR 1.55(f)(2) . The MPEP states: A certified copy of the foreign application must be filed within the time limit set forth in the PCT and the Regulations under the PCT in an international application entering the national stage under 35 U.S.C. 371. If the certified copy was not filed during the international stage, it must be filed within the later of: Four months from the date on which the national stage commenced under 35 U.S.C. 371(b) or (f) Four months from the date of the initial submission under 35 U.S.C. 371 to enter the national stage Sixteen months from the filing date of the prior foreign application Exceptions to these time limits are provided in paragraphs (h), (i), and (j) of 37 CFR 1.55. To learn more: certified copy foreign application national stage application PCT

Question 1

Where can I obtain the PCT international application transmittal letter form?

Accepted Answer

The PCT international application transmittal letter form (Form PTO-1382) can be obtained online from the USPTO website. According to MPEP 1830:

"The form, which is intended to simplify the filing of PCT international applications and related documents with the United States Receiving Office, may be obtained online at www.uspto.gov/patents-getting-started/international-protection/patent-cooperation-treaty/pct-chapter-i-forms."

You can access and download the form directly from the provided USPTO webpage.

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Question 2

What are the specific criteria for determining a substantial new question of patentability in supplemental examination?

Accepted Answer

The criteria for determining a substantial new question of patentability (SNQ) in supplemental examination are outlined in MPEP 2816.02. The key factors include:

Whether the information presented in the request raises a new, non-cumulative technological teaching that was not present in the patent examination
If the information suggests a reasonable likelihood that the examiner would consider the prior art important in deciding patentability
Whether the item of information, if considered along with the other items of information in the record of the patent, raises a substantial question of patentability

The MPEP states: "A substantial new question of patentability is present when it is shown that there is a substantial likelihood that a reasonable examiner would consider the item of information important in deciding whether or not the claim is patentable."

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Question 3

What are the requirements for filing a certified copy of a foreign application in a national stage application?

Accepted Answer

For national stage applications under 35 U.S.C. 371, the requirements for filing a certified copy of a foreign application are outlined in 37 CFR 1.55(f)(2). The MPEP states:

A certified copy of the foreign application must be filed within the time limit set forth in the PCT and the Regulations under the PCT in an international application entering the national stage under 35 U.S.C. 371.

If the certified copy was not filed during the international stage, it must be filed within the later of:

Four months from the date on which the national stage commenced under 35 U.S.C. 371(b) or (f)
Four months from the date of the initial submission under 35 U.S.C. 371 to enter the national stage
Sixteen months from the filing date of the prior foreign application

Exceptions to these time limits are provided in paragraphs (h), (i), and (j) of 37 CFR 1.55.

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Question 4

How can the requirement for a certified copy be satisfied if the foreign application was filed in a foreign intellectual property office participating in a priority document exchange agreement?

Accepted Answer

Under 37 CFR 1.55(i), the requirement for a certified copy of the foreign application will be considered satisfied if:

The foreign application was filed in a foreign intellectual property office participating with the USPTO in a bilateral or multilateral priority document exchange agreement;
The claim for priority is presented in an application data sheet, identifying the foreign application and including the information necessary for the participating foreign office to provide the USPTO with access to the foreign application; and
The copy of the foreign application is received by the USPTO from the participating foreign office, or a certified copy is filed, within the time period specified in 37 CFR 1.55(g)(1).

In addition, if the foreign application was not filed in a participating office directly, but a certified copy was filed in an application subsequently filed in a participating office that permits the USPTO to obtain a copy, the applicant must also file a request in a separate document that the USPTO obtain a copy of the foreign application from the participating office. See MPEP 215.01.

Question 5

How does the USPTO handle priority claims in national stage applications when the certified copy is already in the International Bureau's priority document database?

Accepted Answer

When the certified copy of the priority document is already in the International Bureau's priority document database, the USPTO handles priority claims in national stage applications as follows:

The USPTO will attempt to retrieve the certified copy from the International Bureau's priority document database.
If successful, no further action is required from the applicant regarding the submission of the certified copy.
According to MPEP 213.06, 'In national stage applications, a claim for priority must be made within the time limit set forth in the PCT and the Regulations under the PCT.'
The USPTO will consider the priority claim to be compliant with the requirements of 37 CFR 1.55(f)(2) if the certified copy is timely retrieved from the International Bureau.

This process simplifies the priority claim procedure for applicants in national stage applications when the certified copy is already available through the International Bureau.

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Question 6

What is a certified copy of a foreign application and when must it be filed?

Accepted Answer

A certified copy of a foreign application is an official copy of the foreign patent application, certified by the patent office where it was filed. It is required to perfect a claim of foreign priority in a U.S. patent application.

According to 37 CFR 1.55(f), for applications filed on or after March 16, 2013:

"A certified copy of the foreign application must be filed within the later of four months from the actual filing date of the application, or sixteen months from the filing date of the prior foreign application, in an original application under 35 U.S.C. 111(a) filed on or after March 16, 2013, except as provided in paragraphs (h), (i), and (j) of this section."

There are exceptions to this requirement, such as when the foreign application was filed in a foreign intellectual property office participating in a priority document exchange agreement with the USPTO. In such cases, the applicant can request that the USPTO retrieve the certified copy electronically.

Question 7

What is considered when determining if a substantial new question of patentability exists?

Accepted Answer

The determination of whether a substantial new question of patentability exists is based on the patent claims in effect at the time of the determination. The MPEP states:

"The patent claims in effect at the time of the determination will be the basis for deciding whether a substantial new question of patentability has been raised." (37 CFR 1.515(a))

It's important to note that amendments presented with the request (if filed by the patent owner), filed in a pending reexamination proceeding, or submitted in a reissue application where no reissue patent has been issued, will not be considered when deciding on the request.

Additionally, the determination does not involve making a decision on patentability/unpatentability of the claims. The focus is solely on whether a substantial new question of patentability is raised by the request and the prior art cited therein.

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Question 8

What is the time limit for submitting a certified copy of the priority document in an international design application?

Accepted Answer

For international design applications designating the United States, there is generally no specific time limit for submitting a certified copy of the priority document. The MPEP 213.07 explains:

'In accordance with Hague Agreement Rule 7(5)(f), a copy of the priority document may be submitted to the International Bureau within three months from the date of filing of the international design application. The copy of the priority document so submitted will be considered to satisfy the requirement for a certified copy of the priority document in accordance with 37 CFR 1.55(m).'

However, it's important to note that if the USPTO requires a certified copy for specific reasons (e.g., to overcome a reference), you may need to submit it within a specified timeframe as requested by the Office.

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Question 9

What are the requirements for submitting a certified copy of a foreign priority document in an international design application?

Accepted Answer

The requirements for submitting a certified copy of a foreign priority document in an international design application are as follows:

A certified copy of the foreign priority document is generally not required to be submitted to the USPTO.
The International Bureau will normally handle the exchange of priority documents with the USPTO.
If the priority document is not in the International Bureau's Digital Access Service (DAS), the applicant may need to submit it directly.

According to MPEP 2920.05(d):

"In most cases, the applicant will not need to submit a certified copy of the foreign priority document to the Office in an international design application designating the United States."

However, it's important to note that if the International Bureau is unable to obtain a copy of the priority document, the applicant may be required to provide it directly to the USPTO.

To learn more:

foreign priority
certified copy
international design applications
USPTO requirements

Question 10

When is the latest a certified copy can be filed for the patent to include the foreign priority claim without a certificate of correction?

Accepted Answer

The certified copy of the foreign application must be filed before the patent is granted. If the certified copy is filed after payment of the issue fee but prior to the date of grant, the priority claim will be placed in the file record but the patent will not include the priority claim unless corrected after the patent is granted using a certificate of correction under 35 U.S.C. 255 and 37 CFR 1.323.

For applications filed under 35 U.S.C. 111(a) (other than design applications), a petition under 37 CFR 1.55(e) to accept an unintentionally delayed priority claim must also be filed with the certificate of correction. For all applications, a grantable petition under 37 CFR 1.55(f) or (g) must also be filed with the certificate of correction unless the priority claim was timely made but a certified copy was not yet in the file. See MPEP 215.03.

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Where can I obtain the PCT international application transmittal letter form?

What are the specific criteria for determining a substantial new question of patentability in supplemental examination?

What are the requirements for filing a certified copy of a foreign application in a national stage application?

How can the requirement for a certified copy be satisfied if the foreign application was filed in a foreign intellectual property office participating in a priority document exchange agreement?

How does the USPTO handle priority claims in national stage applications when the certified copy is already in the International Bureau’s priority document database?

What is a certified copy of a foreign application and when must it be filed?

What is considered when determining if a substantial new question of patentability exists?

What is the time limit for submitting a certified copy of the priority document in an international design application?

What are the requirements for submitting a certified copy of a foreign priority document in an international design application?

When is the latest a certified copy can be filed for the patent to include the foreign priority claim without a certificate of correction?