Q: How is the international search fee paid and when is it due?

According to MPEP 1840 , the international search fee for the selected International Searching Authority (ISA) must be paid to the USPTO as a receiving Office. The fee is due within one month from the time of receipt of the international application. The MPEP states: "The international search fee for the selected ISA must be paid to the USPTO as a receiving Office within one month from the time of receipt of the international application." It's important to note that the search fee amounts can change due to costs and exchange rate fluctuations. The current fee amounts for competent International Searching Authorities are published in United States dollars in each weekly edition of the Official Gazette. Applicants should check the most recent publication for the most up-to-date fee information. To learn more: International Search Fee PCT USPTO International Searching Authority Official Gazette

Question 1

What types of technical information can an examiner request during patent examination?

Accepted Answer

An examiner can request various types of technical information during patent examination, as outlined in MPEP 704.11(a). Some examples include:

Technical explanations of the invention
Details of how the invention is made or used
Specific utilities of the invention
Best mode of carrying out the invention
Copies of any non-patent literature relied upon

The MPEP states: 'Information reasonably necessary for finding prior art ... may include technical information ... such as copies of any non-patent literature relied upon by applicant in drafting the application.' This indicates that examiners can request a wide range of technical details to ensure a thorough examination.

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Question 2

What is the function-way-result test in the doctrine of equivalents?

Accepted Answer

The function-way-result test is a key aspect of determining equivalence under the doctrine of equivalents. MPEP 2186 references this test as follows:

"[A]n analysis of the role played by each element in the context of the specific patent claim will thus inform the inquiry as to whether a substitute element matches the function, way, and result of the claimed element, or whether the substitute plays a role substantially different from the claimed element."

This test evaluates whether a substitute element in an accused product performs substantially the same function, in substantially the same way, to achieve substantially the same result as the claimed element in the patented invention.

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Question 3

Can an applicant rebut a prima facie showing of serious search or examination burden?

Accepted Answer

Yes, an applicant can rebut a prima facie showing of serious search or examination burden made by the examiner. The MPEP 803 states:

"A prima facie showing of serious search and/or examination burden may be rebutted by appropriate showings or evidence by the applicant."

This means that if an applicant believes the examiner's justification for a restriction requirement is insufficient or incorrect, they can provide evidence or arguments to challenge the examiner's assertion of a serious burden. For example, an applicant might demonstrate that the claimed inventions are closely related and would not require substantially different search strategies or raise distinct non-prior art issues.

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Question 4

Should an examiner conduct a new search after a complete reversal by the PTAB?

Accepted Answer

No, an examiner should not conduct a new search after a complete reversal by the Patent Trial and Appeal Board (PTAB). The MPEP explicitly states:

"The examiner should never regard such a reversal as a challenge to make a new search to uncover other and better references."

This guidance is particularly important when the application has been transferred to a different examiner. The MPEP further emphasizes:

"This is particularly so where the application or ex parte reexamination proceeding has meanwhile been transferred or assigned to an examiner other than the one who rejected the claims leading to the appeal. The second examiner should give full faith and credit to the prior examiner's search."

Examiners are expected to respect the PTAB's decision and the prior examiner's work, focusing on moving the application forward based on the existing record.

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Question 5

What determines the amount of international filing, transmittal, and search fees for PCT applications?

Accepted Answer

The amount of international filing, transmittal, and search fees for PCT applications is determined by the fees in effect on the date the international application is received by the USPTO. This is based on several PCT Rules and US regulations:

As stated in the MPEP: "Pursuant to PCT Rules 14.1(c), PCT Rule 15.3, and 16.1(f), the international filing, transmittal, and search fee payable is the international filing, transmittal, and search fee in effect on the receipt date of the international application. See 37 CFR 1.431(c)."

Therefore, it's crucial for applicants to check the current fee schedule on the date they submit their international application to ensure they pay the correct amounts.

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Question 6

How is the international search fee paid and when is it due?

Accepted Answer

According to MPEP 1840, the international search fee for the selected International Searching Authority (ISA) must be paid to the USPTO as a receiving Office. The fee is due within one month from the time of receipt of the international application.

The MPEP states: "The international search fee for the selected ISA must be paid to the USPTO as a receiving Office within one month from the time of receipt of the international application."

It's important to note that the search fee amounts can change due to costs and exchange rate fluctuations. The current fee amounts for competent International Searching Authorities are published in United States dollars in each weekly edition of the Official Gazette. Applicants should check the most recent publication for the most up-to-date fee information.

To learn more:

Question 7

How does the International Search Report differ from the Written Opinion?

Accepted Answer

The International Search Report (ISR) and the Written Opinion of the International Searching Authority are distinct but related documents in the PCT process. According to MPEP 1844:

"The search report is only for the purpose of identifying prior art and should not contain any expressions of opinion, reasoning, argument or explanation as to any cited prior art. Such comments should be included in the written opinion of the International Searching Authority."

Key differences include:

Purpose: The ISR identifies relevant prior art, while the Written Opinion provides an initial, non-binding opinion on patentability.
Content: The ISR lists citations and search information, while the Written Opinion contains reasoning and explanations.
Form: The ISR uses Form PCT/ISA/210, while the Written Opinion uses Form PCT/ISA/237.

Both documents are transmitted together and serve as a basis for further examination, but they fulfill different roles in the patent examination process.

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Question 8

What is the primary focus of a patent examiner's initial search?

Accepted Answer

The primary focus of a patent examiner's initial search is on the invention as described and claimed in the nonprovisional application. According to the MPEP, The first search should cover the invention as described and claimed, including the inventive concepts toward which the claims appear to be directed. It should not be extended merely to add immaterial variants. This means the examiner should thoroughly understand the invention and search for relevant prior art in patents and other published documents, including nonpatent literature (NPL).

To learn more:

patent examination
prior art search
nonprovisional application
inventive concepts

Question 9

How does the restoration of the right of priority affect the international search in a PCT application?

Accepted Answer

The restoration of the right of priority can have an impact on the international search process in a PCT application. According to MPEP 1828.01:

"Where the receiving Office has restored the right of priority based on the criterion of "due care", the International Searching Authority, the International Preliminary Examining Authority, or a designated Office may, in a special case, make a determination that the priority claim was nevertheless invalid."

This means that:

The International Searching Authority will generally consider the restored priority date when conducting the international search.
However, in special cases, the searching authority may determine that the priority claim is invalid, even if it was restored by the receiving Office.
This determination could affect the relevance of prior art considered during the search.

It's important for applicants to be aware that the restoration of priority rights doesn't guarantee absolute protection against prior art that falls between the original priority date and the actual filing date.

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Question 10

What is the purpose of a classified search in patent examination?

Accepted Answer

The purpose of a classified search in patent examination is to identify the most relevant prior art efficiently. According to MPEP 904.02(a):

"A proper field of search normally includes the subclass in which the claimed subject matter of an application would be classified in the U.S. Patent Classification System and analogous areas of domestic and foreign classification."

This approach ensures that examiners focus their search efforts on the most likely areas where relevant prior art may be found, based on the subject matter of the application.

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What types of technical information can an examiner request during patent examination?

What is the function-way-result test in the doctrine of equivalents?

Can an applicant rebut a prima facie showing of serious search or examination burden?

Should an examiner conduct a new search after a complete reversal by the PTAB?

What determines the amount of international filing, transmittal, and search fees for PCT applications?

How is the international search fee paid and when is it due?

How does the International Search Report differ from the Written Opinion?

What is the primary focus of a patent examiner’s initial search?

How does the restoration of the right of priority affect the international search in a PCT application?

What is the purpose of a classified search in patent examination?