Q: What are the requirements for a valid Joint Research Agreement under MPEP 2156?

According to MPEP 2156 , there are three key requirements for a valid Joint Research Agreement (JRA): The subject matter disclosed must have been developed and the claimed invention must have been made by, or on behalf of, one or more parties to a joint research agreement; The joint research agreement must have been in effect on or before the effective filing date of the claimed invention; and The claimed invention must have been made as a result of activities undertaken within the scope of the joint research agreement. The MPEP emphasizes: "If these conditions are met, the AIA specifically provides that the claimed invention shall not be deemed to be owned by the same person or subject to an obligation of assignment to the same person for purposes of 35 U.S.C. 102(b)(2)(C)." This provision allows collaborators to protect their inventions from being used as prior art against each other, promoting cooperation in research and development. To learn more: Joint Research Agreement JRA Requirements Patent Collaboration 35 U.S.C. 102

Question 1

How can I access a reissue application file?

Accepted Answer

Reissue application files are generally open to public inspection. According to 37 CFR 1.11(b):

Reissue applications are open to inspection by the general public
The filing of reissue applications (except for continued prosecution applications under 37 CFR 1.53(d)) is announced in the Official Gazette
The announcement includes details such as filing date, reissue application and original patent numbers, title, inventor name, and examining group

For Image File Wrapper (IFW) reissue applications:

Files are open to inspection by the general public through Patent Center via the USPTO website
Members of the public can view the entire content of the reissue application file history online

Direct quote: 'All reissue applications, all applications in which the Office has accepted a request to open the complete application to inspection by the public, and related papers in the application file, are open to inspection by the public, and copies may be furnished upon paying the fee therefor.' (37 CFR 1.11(b))

Question 2

Can examiners perform additional prior art searches during reexamination?

Accepted Answer

Yes, examiners can perform additional prior art searches during reexamination, but with certain limitations. MPEP 2244 states:

"If the examiner believes that additional prior art patents and publications can be readily obtained by searching to supply any deficiencies in the prior art cited in the request, the examiner can perform such an additional search. Such a search should be limited to that area most likely to contain the deficiency of the prior art previously considered and should be made only where there is a reasonable likelihood that prior art can be found to supply any deficiency necessary to 'a substantial new question of patentability.'"

This guidance suggests that additional searches should be focused and conducted only when they are likely to yield relevant results for determining a substantial new question of patentability.

To learn more:

Question 3

How are materials submitted under MPEP § 724.02 treated in reissue applications open to the public?

Accepted Answer

Materials submitted under MPEP § 724.02 in reissue applications open to the public under 37 CFR 1.11(b) are treated as follows:

The materials are kept separate from the reissue application file and are not publicly available until a determination is made regarding their materiality to patentability.
They will only be released to the public if no petition to expunge was filed before a notice of allowability or abandonment, or if such a petition was denied.
The examiner reviews the file for any pending petitions to expunge before issuing notices of abandonment or allowability.
If the information is found to be material to patentability, it becomes a permanent part of the public file.
If not material, the petition to expunge is granted, and the information is expunged.

As stated in the MPEP: "Materials submitted under MPEP § 724.02 will only be released to the public with any other application papers if no petition to expunge (37 CFR 1.59) was filed prior to the mailing of a notice of allowability or notice of abandonment, or if a petition to expunge was filed and the petition was denied."

To learn more:

Question 4

What patent application files are open to public inspection?

Accepted Answer

According to 37 CFR 1.11(a), the following patent application files are open to public inspection:

Published applications
Patents
Statutory invention registrations

The public can obtain copies of these files upon payment of the fee set forth in 37 CFR 1.19(b)(2). However, if an application was published in redacted form, the complete file may not be available if certain requirements are met and the application is still pending.

Question 5

What constitutes a valid 'reply' for a petition to excuse unintentional delay in an international design application?

Accepted Answer

A valid 'reply' for a petition to excuse unintentional delay in an international design application can take two forms, as specified in 37 CFR 1.1051(c):

Filing a continuing application (with additional requirements if the original application hasn't been internationally registered)
A grantable petition under 37 CFR 1.1052 for applications filed indirectly with the USPTO

The MPEP states: "Pursuant to 37 CFR 1.1051(c), the 'reply' required for a grantable petition under 37 CFR 1.1051(a) may be: (1) the filing of a continuing application and, if the international design application has not been subject to international registration, a grantable petition under 37 CFR 1.1023(b) to accord the international design application a filing date; or (2) a grantable petition under 37 CFR 1.1052, where the international design application was filed with the Office as an office of indirect filing."

It's important to note that the specific type of reply required depends on the circumstances of the application and how it was originally filed.

To learn more:

Question 6

Why is the Old Combination rejection no longer valid in patent examination?

Accepted Answer

The Old Combination rejection is no longer valid due to changes in patent law and subsequent court interpretations. The MPEP 2173.05(j) states:

"A majority opinion of the Board of Appeals held that Congress removed the underlying rationale of Lincoln Engineering in the 1952 Patent Act, and thereby effectively legislated that decision out of existence. Ex parte Barber, 187 USPQ 244 (Bd. App. 1974)."

This change in law and interpretation means that patent claims should be evaluated based on their compliance with 35 U.S.C. 112(b) rather than on the old combination principle.

To learn more:

Question 7

What are the requirements for a valid Joint Research Agreement under MPEP 2156?

Accepted Answer

According to MPEP 2156, there are three key requirements for a valid Joint Research Agreement (JRA):

The subject matter disclosed must have been developed and the claimed invention must have been made by, or on behalf of, one or more parties to a joint research agreement;
The joint research agreement must have been in effect on or before the effective filing date of the claimed invention; and
The claimed invention must have been made as a result of activities undertaken within the scope of the joint research agreement.

The MPEP emphasizes:

"If these conditions are met, the AIA specifically provides that the claimed invention shall not be deemed to be owned by the same person or subject to an obligation of assignment to the same person for purposes of 35 U.S.C. 102(b)(2)(C)."

This provision allows collaborators to protect their inventions from being used as prior art against each other, promoting cooperation in research and development.

To learn more:

Question 8

What are the key components of a valid inventor's oath or declaration?

Accepted Answer

A valid inventor's oath or declaration must include several key components as outlined in the MPEP:

Inventor bibliographic information (see MPEP § 602.08(a))
The name of the inventor or each joint inventor
Signatures of each inventor, except as otherwise provided
Identification of the application to which it is directed

The MPEP states: The inventor's oath or declaration must include certain inventor bibliographic information (see MPEP § 602.08(a)), name the inventor or each joint inventor and except as otherwise provided be signed by each inventor (see MPEP § 602.08(b)), and identify the application to which it is directed (see MPEP § 602.08(c)).

It's important to ensure all these elements are present and correct to avoid potential issues with the patent application process.

To learn more:

Question 9

What are the requirements for a valid express abandonment of a patent application?

Accepted Answer

For a valid express abandonment of a patent application, the following requirements must be met:

The abandonment must be in writing and signed by a party authorized to sign the application.
The written abandonment must identify the application number and include a statement of intent to abandon the application.
The abandonment must be filed in the USPTO during the pendency of the application.

As stated in MPEP 711.01: 'An express abandonment must be filed in the Patent and Trademark Office during the pendency of the application, and will not be recognized if filed in an application not pending.'

To learn more:

Question 10

What constitutes a valid disclosure in a patent application?

Accepted Answer

In a patent application, a valid disclosure can include not only the description and drawings as filed, but also the claims present on the filing date. As stated in MPEP 608.01(l): "In establishing a disclosure, applicant may rely not only on the description and drawing as filed but also on the claims present on the filing date of the application if their content justifies it." This means that if a claim itself clearly discloses subject matter not shown in the drawing or described in the description, it can be considered part of the disclosure.

To learn more:

patent disclosure
patent claims
patent application
MPEP

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How can I access a reissue application file?

Can examiners perform additional prior art searches during reexamination?

How are materials submitted under MPEP § 724.02 treated in reissue applications open to the public?

What patent application files are open to public inspection?

What constitutes a valid ‘reply’ for a petition to excuse unintentional delay in an international design application?

Why is the Old Combination rejection no longer valid in patent examination?

What are the requirements for a valid Joint Research Agreement under MPEP 2156?

What are the key components of a valid inventor’s oath or declaration?

What are the requirements for a valid express abandonment of a patent application?

What constitutes a valid disclosure in a patent application?