Question 1

Are reissue patent applications open to public inspection?

Accepted Answer

Yes, reissue patent applications are open to public inspection. According to MPEP 1430, "Under 37 CFR 1.11(b) all reissue applications filed are open to inspection by the general public, and copies may be furnished upon paying the fee therefor." This means that anyone can view the contents of a reissue application file, either through the USPTO's Patent Center or by requesting copies for a fee.

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Question 2

What are the requirements for a power of attorney to be valid in patent applications?

Accepted Answer

What are the requirements for a power of attorney to be valid in patent applications?

For a power of attorney to be valid in patent applications, it must meet the following requirements:

It must be signed by the applicant for patent (e.g., the inventor) or the assignee of the entire interest.
It must be in writing.
It must name one or more representatives to act on behalf of the principal.

As stated in MPEP 402.04: 'The power of attorney must be signed by the applicant for patent (e.g., the inventor(s)) or the assignee of the entire interest of the applicant.' This ensures that only authorized individuals can appoint representatives to act on behalf of the applicant or assignee in patent matters.

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Question 3

What are the requirements for a valid 37 CFR 1.130(b) declaration?

russ.krajec@blueironip.com · Accepted Answer

What are the requirements for a valid 37 CFR 1.130(b) declaration?

A valid 37 CFR 1.130(b) declaration must meet several requirements to effectively establish prior public disclosure. According to MPEP 717.01(b), the declaration should:

Be made by the inventor, a joint inventor, or another who obtained the subject matter from them
Establish that the subject matter was publicly disclosed before the relevant date of the potential prior art disclosure
Show that the publicly disclosed subject matter is the same as the subject matter in the application
Provide evidence of the public availability if it's not apparent from the disclosure itself
Include a copy of the disclosure if it's not available to the public

The MPEP states: 'Where the prior public disclosure is not apparent, the declaration or affidavit must also provide evidence that establishes that the potential prior art subject matter was publicly disclosed by the inventor or a joint inventor or another who obtained the subject matter disclosed directly or indirectly from the inventor or a joint inventor.'

Additionally, the declaration should be timely filed and accompanied by any necessary evidence to support the claims made in the declaration.

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37 CFR 1.130(b)

Question 4

What are the valid reasons for the USPTO to withdraw an application from issue after payment of the issue fee?

Accepted Answer

The USPTO can withdraw an application from issue after payment of the issue fee only for specific reasons outlined in 37 CFR 1.313(b). The MPEP states:

"35 U.S.C. 151 and 37 CFR 1.313(b) do not authorize the USPTO to withdraw an application from issue after payment of the issue fee for any reason except:

A mistake on the part of the Office;
A violation of the rules of practice;
Fraud;
A violation of 35 U.S.C. 185;
An interference;
It is unpatentable;
The publication of an applicant may be detrimental to the national security or to the public safety or health; or
The publication of an applicant may prejudice United States foreign relations.

See 37 CFR 1.313(b)."

It's important to note that reasons such as minor typographical errors or the need to submit an Information Disclosure Statement do not warrant withdrawing an application from issue after payment of the issue fee.

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Question 5

When did the requirement for a valid Sequence Listing XML become effective?

Accepted Answer

The requirement for a valid Sequence Listing XML became effective for patent applications filed on or after July 1, 2022. This is clearly stated in the editor's note in MPEP § 2413.01(b):

"[Editor Note: This section is applicable to all applications filed on or after July 1, 2022, having disclosures of nucleotide and/or amino acid sequences as defined in 37 CFR 1.831(b).]"

This date marks an important transition in the way biological sequence information is submitted and processed in patent applications, aligning with international standards for biotechnology patents.

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Question 6

Is an applicant required to search for unknown information when responding to a requirement under 37 CFR 1.105?

Accepted Answer

No, an applicant is not required to search for unknown information when responding to a requirement under 37 CFR 1.105. The MPEP clearly states:

"Similar to 37 CFR 1.56, applicant is required by 37 CFR 1.105 to submit information already known, but there is no requirement to search for information that is unknown."

This means that applicants are only obligated to provide information that is already within their knowledge or readily available to them. They are not expected to conduct new research or investigations to respond to the requirement for information.

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Question 7

What is Form PCT/ISA/203 and when is it used?

Accepted Answer

Form PCT/ISA/203 is a declaration used by the International Searching Authority (ISA) when it determines that no search report will be established for any of the claims in an international patent application. According to the MPEP:

"If the examiner determines that none of the claims will be searched, the examiner declares that no search report will be established using Form PCT/ISA/203."

This form is used in situations where the ISA concludes that a meaningful search cannot be carried out for the entire application. It's important to note that:

The lack of an international search report does not invalidate the international application
The application will continue to be processed and communicated to designated Offices

This procedure ensures that applicants and patent offices are informed when a search cannot be conducted, while allowing the application to proceed through the international phase.

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Question 8

How does the USPTO's policy differ from other International Searching Authorities regarding subject matter searches?

Accepted Answer

The USPTO's policy on international searches differs significantly from other International Searching Authorities. According to MPEP 1843.02:

"The USPTO has declared that it will search and examine, in international applications, all subject matter searched and examined in U.S. national applications."

This means that while other International Searching Authorities may choose not to search certain subject matters as allowed by PCT Rule 39, the USPTO has committed to a more comprehensive approach. This policy ensures that applicants filing through the USPTO as the International Searching Authority will receive a search comparable to that of a U.S. national application, regardless of the subject matter.

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Question 9

What is the test for nonobviousness in design patent applications?

Accepted Answer

The test for nonobviousness in design patent applications is based on the Graham v. John Deere Co. factual inquiries, as stated in the MPEP:

"The basic factual inquiries guiding the evaluation of obviousness, as outlined by the Supreme Court in Graham v. John Deere Co., 383 U.S. 1, 148 USPQ 459 (1966), are applicable to the evaluation of design patentability:

(A) Determining the scope and content of the prior art;
(B) Ascertaining the differences between the claimed invention and the prior art;
(C) Resolving the level of ordinary skill in the art; and
(D) Evaluating any objective evidence of nonobviousness (i.e., so-called "secondary considerations")."

These factual inquiries are used to determine whether the claimed design would have been obvious to a designer of ordinary skill in the art before the effective filing date of the claimed invention.

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Question 10

Which USPTO offices handle inquiries from high-level government sources?

Accepted Answer

The USPTO has designated specific offices to handle inquiries from high-level government sources. According to MPEP 203.08(a):

Office of Policy and International Affairs: Handles inquiries from embassies, the Office of the U.S. Trade Representative, and the Department of State.
Office of Governmental Affairs: Manages inquiries from Congress and the White House.

These offices are responsible for ensuring that such high-level inquiries are handled appropriately and consistently.

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Are reissue patent applications open to public inspection?

What are the requirements for a power of attorney to be valid in patent applications?

What are the requirements for a valid 37 CFR 1.130(b) declaration?

What are the valid reasons for the USPTO to withdraw an application from issue after payment of the issue fee?

When did the requirement for a valid Sequence Listing XML become effective?

Is an applicant required to search for unknown information when responding to a requirement under 37 CFR 1.105?

What is Form PCT/ISA/203 and when is it used?

How does the USPTO’s policy differ from other International Searching Authorities regarding subject matter searches?

What is the test for nonobviousness in design patent applications?

Which USPTO offices handle inquiries from high-level government sources?