Question 1

What is the 'critical element test' for unexpected results in patent applications?

Accepted Answer

The 'critical element test' is an important consideration when evaluating whether unexpected results are commensurate in scope with the claimed invention. MPEP 716.02(d) states:

To establish unexpected results over a claimed range, applicants should compare a sufficient number of tests both inside and outside the claimed range to show the criticality of the claimed range.

This test involves:

Identifying the critical element or range in the claims
Providing data that demonstrates unexpected results within the claimed range
Showing that the results are significantly different outside the claimed range

If the applicant can demonstrate that the claimed range or element is critical to achieving unexpected results, it can help establish that the results are commensurate in scope with the claims.

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Question 2

What is the "field of endeavor test" for determining analogous art?

Accepted Answer

The "field of endeavor test" is one of the criteria used to determine if a reference qualifies as analogous art. According to MPEP 2141.01(a):

"Under the field of endeavor test, if the reference is from the same field of endeavor as the claimed invention, irrespective of the problem addressed, then the reference is analogous art."

This test focuses on whether the reference and the claimed invention are in the same technical field, regardless of the specific problem being solved. It's important to note that the field of endeavor should be defined broadly to encompass the full scope of the inventor's work.

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Question 3

How does the use of a machine or transformation test affect patent eligibility?

Accepted Answer

The machine-or-transformation test can be a useful tool in determining whether a claim recites significantly more than a judicial exception. However, it is not the sole test for deciding whether an invention is a patent-eligible application of an abstract idea. According to MPEP 2106.05(f):

"Use of a machine or transformation of an article must impose meaningful limits on the claim's scope to impart patent-eligibility. Use of a machine that contributes only nominally or insignificantly to the execution of the claimed method (e.g., in a data gathering step or in a field-of-use limitation) would not integrate a judicial exception or provide significantly more."

This means that merely using a generic computer or machine to perform an abstract idea is not sufficient to make the claim patent-eligible. The machine must play a significant part in permitting the claimed method to be performed, rather than function solely as an obvious mechanism for permitting a solution to be achieved more quickly.

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Question 4

What is an 'interim copy' of a foreign application and how can it satisfy the certified copy requirement?

Accepted Answer

37 CFR 1.55(j) allows an applicant to provide an 'interim copy' of the original foreign application to satisfy the requirement for a certified copy to be filed within the time limit set in 37 CFR 1.55(f). An interim copy must:

Be clearly labeled as 'Interim Copy'
Include the specification, drawings, and claims of the foreign application
Be filed with a separate cover sheet identifying the foreign application
Be filed within the later of 16 months from the foreign filing date or 4 months from the actual U.S. filing date

A certified copy of the foreign application must still be filed during the pendency of the application, unless filed with a petition under 37 CFR 1.55(e), (f), or (g).

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Question 5

How does the level of skill in the art affect enablement in plant genetics prior art?

Accepted Answer

The level of skill in the art is a crucial factor in determining enablement in plant genetics prior art. According to MPEP 2121.03, "The fact that experimentation may be complex does not necessarily make it undue, if the art typically engages in such experimentation." This statement underscores the importance of considering the typical practices and knowledge in the field of plant genetics when assessing enablement.

The level of skill in the art affects enablement in several ways:

Interpretation of disclosures: A person with ordinary skill in the art (POSA) may be able to understand and apply information from prior art that might seem incomplete or unclear to someone with less expertise.
Routine experimentation: What constitutes "undue experimentation" depends on what is considered routine in the field. As the MPEP notes, complex experimentation may not be undue if it's typical in plant genetics.
Bridging gaps in disclosure: A skilled practitioner may be able to fill in minor gaps in a prior art disclosure using their knowledge and experience, potentially rendering a seemingly non-enabling disclosure enabling.

When examining prior art for enablement in plant genetics, patent examiners must consider what a person of ordinary skill in the art would understand and be capable of at the time the prior art was published. This assessment helps determine whether the prior art provides sufficient information to enable the claimed invention without undue experimentation.

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Question 6

How does the patent title affect search and classification?

Accepted Answer

How does the patent title affect search and classification?

The patent title plays a crucial role in search and classification processes. According to MPEP 606:

"The title of the invention ... is used for classifying and searching."

This means that:

A well-crafted title helps examiners and researchers find relevant prior art
It aids in properly classifying the invention within the patent system
An accurate title can expedite the examination process
It helps potential licensees or competitors discover the patent more easily

Therefore, creating a clear, concise, and descriptive title is essential not only for compliance but also for the practical aspects of patent searching and classification.

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Question 7

Is the listing of references in the PCT international search report considered an IDS?

Accepted Answer

No, the listing of references in the PCT international search report is not considered an Information Disclosure Statement (IDS) complying with 37 CFR 1.98. As stated in MPEP 609.03:

"The listing of references in the PCT international search report is not considered to be an information disclosure statement (IDS) complying with 37 CFR 1.98."

To be considered a compliant IDS, the submission must meet specific requirements outlined in 37 CFR 1.98, including providing legible copies of foreign patents, publications, pending U.S. applications, and other information. Additionally, the IDS must include a separate list of all submitted items for consideration by the Office.

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37 CFR 1.98

Question 8

What happens if I fail to make a timely priority claim or submit a certified copy?

Accepted Answer

If you fail to make a timely priority claim or submit a certified copy of the foreign application within the required time period, the following may occur:

The right of priority may be considered waived
The effective filing date of your application may be the actual U.S. filing date, not the foreign filing date
Intervening prior art may be applicable against your application

However, 37 CFR 1.55(e) provides for acceptance of a delayed priority claim if:

The claim is filed within the pendency of the application
A petition is filed with the delayed claim
The delay was unintentional
The required petition fee is paid

Similarly, 37 CFR 1.55(f) allows for late submission of a certified copy with a petition showing good and sufficient cause for the delay and payment of a fee. It's always best to make priority claims and submit certified copies timely to avoid potential issues.

Question 9

What is the time period for filing a certified copy of the foreign priority application in a U.S. application filed on or after March 16, 2013?

Accepted Answer

For an original application filed under 35 U.S.C. 111(a) 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, except as provided in 37 CFR 1.55(h), (i), and (j). See MPEP 215.02.

For an international application entering the national stage under 35 U.S.C. 371 in which the national stage commenced on or after December 18, 2013, a certified copy of the foreign application 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, or sixteen months from the filing date of the prior foreign application, except as provided in 37 CFR 1.55(h), (i), and (j). See MPEP 215.02.

Question 10

How do I pay for a certified copy of a reexamination file?

Accepted Answer

When ordering a certified copy of a reexamination file, you have flexible payment options. According to the MPEP, the cost of the copy may be charged to a credit card or deposit account.

You can use the following payment methods:

Credit card
USPTO deposit account

When placing your order through the PTCFB's Certified Copy Center storefront or via email to dsd@uspto.gov, you'll have the opportunity to provide your payment information.

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What is the ‘critical element test’ for unexpected results in patent applications?

What is the “field of endeavor test” for determining analogous art?

How does the use of a machine or transformation test affect patent eligibility?

What is an ‘interim copy’ of a foreign application and how can it satisfy the certified copy requirement?

How does the level of skill in the art affect enablement in plant genetics prior art?

How does the patent title affect search and classification?

Is the listing of references in the PCT international search report considered an IDS?

What happens if I fail to make a timely priority claim or submit a certified copy?

What is the time period for filing a certified copy of the foreign priority application in a U.S. application filed on or after March 16, 2013?

How do I pay for a certified copy of a reexamination file?