Question 1

Can a supplemental amendment be filed after a final Office action?

Accepted Answer

Can a supplemental amendment be filed after a final Office action?

Yes, a supplemental amendment can be filed after a final Office action, but its entry is not guaranteed. The MPEP 714.03(a) provides guidance on this:

"A supplemental amendment filed after a final action or after an appeal has been taken from a final rejection will not be entered unless approved by the examiner."

When considering whether to enter a post-final supplemental amendment, examiners typically look for:

Amendments that place the application in condition for allowance
Amendments that do not raise new issues requiring further search or consideration
Amendments that address objections or rejections in the final Office action

If the supplemental amendment doesn't meet these criteria, the examiner may deny entry. Applicants should provide a clear explanation of why the amendment should be entered when filing after a final action.

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Question 2

What happens if I miss the deadline for submitting a benefit claim?

Accepted Answer

If you miss the deadline for submitting a benefit claim, you may still be able to claim the benefit by filing a petition. According to MPEP 211.02:

A benefit claim filed after the required time period may be accepted if it is accompanied by a grantable petition to accept an unintentionally delayed benefit claim under 35 U.S.C. 119(e) (see 37 CFR 1.78(c)) or under 35 U.S.C. 120, 121, 365(c), or 386(c) (see 37 CFR 1.78(e)).

The petition must include:

The reference to the prior application (unless previously submitted)
The petition fee under 37 CFR 1.17(m)
A statement that the entire delay was unintentional

The Director may require additional information if there's a question about whether the delay was unintentional. It's important to note that accepting a late benefit claim is at the discretion of the USPTO and is not guaranteed.

For more information on unintentional delay, visit: unintentional delay.

For more information on USPTO, visit: USPTO.

Question 3

What constitutes a "commercial offer for sale" in patent law?

Accepted Answer

A "commercial offer for sale" in patent law is determined by applying the law of contracts as generally understood. According to MPEP 2152.02(d), "[a] sale is a contract between parties to give and to pass rights of property for consideration which the buyer pays or promises to pay the seller for the thing bought or sold." The Federal Circuit has stated that the offer must be commercially reasonable and made to potential customers. For example:

Providing price quotes to potential customers
Offering products for sale through catalogs or brochures
Displaying products at trade shows with the intent to sell

It's important to note that the offer must be more than merely exploratory in nature; it should demonstrate a willingness to enter into a binding contract.

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Question 4

Can I request prioritized examination for a PCT application entering the national stage?

Accepted Answer

Prioritized examination is not directly available for PCT applications entering the national stage under 35 U.S.C. 371. However, there are two alternative approaches:

File a request for continued examination (RCE) after national stage entry and then request prioritized examination for the RCE.
File a bypass continuation application under 35 U.S.C. 111(a) claiming priority to the PCT application, and request prioritized examination for this new application.

The MPEP states, The procedure for prioritized examination does not apply to international applications that have entered the national stage under 35 U.S.C. 371, except that such an application may undergo prioritized examination if an RCE is filed.

For the bypass continuation option, the MPEP notes, An applicant who has filed an international application may participate in the prioritized examination program by filing a by-pass continuation; i.e., a new application filed in the United States under 35 U.S.C. 111(a) that claims the benefit of the earlier international application under 35 U.S.C. 365(c), rather than entering the national stage under 35 U.S.C. 371.

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Question 5

What is the "on sale" bar in patent law?

Accepted Answer

The "on sale" bar in patent law refers to a provision that can prevent an inventor from obtaining a patent if their invention was on sale before the critical date. According to MPEP 2133.03(b):

"A sale is a contract between parties to give and to pass rights of property for consideration which the buyer pays or promises to pay the seller for the thing bought or sold."

This bar is designed to prevent inventors from commercially exploiting their invention for an extended period before seeking patent protection.

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Question 6

How does the USPTO handle allowed claims after a Federal Circuit decision?

Accepted Answer

The USPTO's handling of allowed claims after a Federal Circuit decision depends on the specific outcome of the appeal. According to MPEP 1216.01:

"Where the case includes one or more allowed claims, including claims allowed by the examiner prior to appeal and claims whose rejections were reversed by either the Board or the court, the proceedings are considered terminated only as to any claims which still stand rejected."

The MPEP provides two examples of how the examiner should proceed:

Convert dependent claims into independent form by examiner's amendment, cancel rejected claims, and issue the application.
Set a 2-month time limit for the appellant to rewrite dependent claims in independent form.

If no formal matters remain, the examiner will pass the application to issue on the allowed claims or, for reexaminations, issue a "Notice of Intent to Issue a Reexamination Certificate."

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How long do patents last?

Can a supplemental amendment be filed after a final Office action?

What happens if I miss the deadline for submitting a benefit claim?

The Patent System is Broken – but not in the way you think it is.

What constitutes a “commercial offer for sale” in patent law?

Can I request prioritized examination for a PCT application entering the national stage?

What is the “on sale” bar in patent law?

Managing the Patent Process

Due Diligence for Patents – Licensing Potential

How does the USPTO handle allowed claims after a Federal Circuit decision?