Question 1

How should examiners evaluate applicant's arguments regarding the improvement to computer functionality or other technology?

Accepted Answer

When evaluating applicant's arguments regarding improvements to computer functionality or other technology, examiners should:

Carefully consider the applicant's arguments and any supporting evidence provided.
Determine whether the claimed invention provides a technical improvement that is reflected in the specification.
Assess whether the improvement is to the functioning of a computer itself or to any other technology or technical field.

MPEP 2106.07(b) states: "If an applicant argues that the claim is directed to an improvement in computer functionality or other technology, the examiner should evaluate that argument and determine whether the purported improvement is reflected in the claim."

Examiners should also consider whether the improvement is captured in the claim language and supported by the specification. If the examiner determines that the claimed invention does not provide a technical improvement, they should clearly explain their reasoning in the Office action.

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Question 2

How can patent examiners directly access foreign patent information?

Accepted Answer

Patent examiners at the USPTO have multiple options for directly accessing foreign patent information. According to MPEP 901.07:

Directly search WPI in-house
Access INPADOC database
Use both WPI and INPADOC
Request foreign patent searches through the Scientific and Technical Information Center (STIC)

The MPEP states: Patent examiners may directly search WPI in-house or INPADOC or both. Examiners may also request foreign patent searches through STIC.

For more information on STIC services, examiners are directed to MPEP § 901.06(a), paragraph IV.

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Question 3

What constitutes an improvement to technology under patent eligibility?

Accepted Answer

An improvement to technology under patent eligibility can be demonstrated by showing that the claimed invention improves the functioning of a computer or any other technology/technical field. The MPEP states:

"If it is asserted that the invention improves upon conventional functioning of a computer, or upon conventional technology or technological processes, a technical explanation as to how to implement the invention should be present in the specification. That is, the disclosure must provide sufficient details such that one of ordinary skill in the art would recognize the claimed invention as providing an improvement."

The improvement can be provided by one or more additional elements or in combination with the recited judicial exception. It's important to analyze the claim as a whole to determine if it provides an improvement to technology.

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Question 4

What is the process for mailing decisions and Office actions in inter partes reexamination?

Accepted Answer

The process for mailing decisions and Office actions in inter partes reexamination involves the following steps:

The examiner completes a decision on the request for inter partes reexamination and/or an Office action.
The CRU technical support staff processes the decision and/or Office action for mailing.
The documents are mailed to the patent owner and the third party requester(s), if needed.
Any necessary copies of references are also mailed.
A transmittal form PTOL-2070 with the third party requester's address is completed.

MPEP 2670 states: "After the examiner has completed a decision on the request for inter partes reexamination and/or an Office action, the technical support staff will process for mailing the decision and/or Office action to the patent owner and to the third party requester(s), if needed. The technical support staff will also mail any copies of any references which are needed."

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Question 5

How should patent examiners evaluate the "improvements" consideration?

Accepted Answer

Patent examiners should evaluate the "improvements" consideration by carefully analyzing both the specification and the claims. The MPEP states:

"During examination, the examiner should analyze the 'improvements' consideration by evaluating the specification and the claims to ensure that a technical explanation of the asserted improvement is present in the specification, and that the claim reflects the asserted improvement."

Key points for examiners to consider include:

Ensuring the specification provides a technical explanation of the improvement
Verifying that the claim reflects the asserted improvement
Analyzing the claim as a whole and as an ordered combination
Avoiding oversimplification of the claims
Considering the extent to which the claim covers a particular solution to a problem or a particular way to achieve a desired outcome

Examiners are generally not expected to make qualitative judgments on the merits of the asserted improvement. If the examiner concludes the disclosed invention does not improve technology, the burden shifts to the applicant to provide persuasive arguments and evidence.

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Question 6

How does the "person of ordinary skill in the art" concept affect claim interpretation?

Accepted Answer

The concept of a "person of ordinary skill in the art" (POSITA) is crucial in patent claim interpretation. According to MPEP 2111, claim interpretation should be based on how a POSITA would understand the claim terms. The MPEP states:

"The focus of the inquiry regarding the meaning of a claim should be what would be reasonable from the perspective of one of ordinary skill in the art."

Key points about the POSITA concept in claim interpretation:

It provides a standard for understanding technical terms and concepts.
It helps determine whether a claim interpretation is reasonable within the context of the invention.
It influences how broadly or narrowly claim terms should be construed.
It ensures that claims are interpreted in light of the relevant technical field's understanding.

By considering the perspective of a POSITA, examiners can ensure that claim interpretations are grounded in the relevant technical context and avoid unreasonable or overly broad interpretations that wouldn't align with how skilled artisans would understand the invention.

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Question 7

How does the USPTO evaluate claims of improved computer functionality in patent applications?

Accepted Answer

The USPTO evaluates claims of improved computer functionality in patent applications by considering whether the claimed invention provides a technical improvement to the computer itself or to another technology. According to MPEP 2106.04(d)(1):

"[T]he claim must be evaluated to ensure the claim itself reflects the disclosed improvement in technology... That is, the claim must include the components or steps of the invention that provide the improvement described in the specification."

Examiners look for specific technical details in the claims that demonstrate how the improvement is achieved, rather than mere statements of intended results.

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Question 8

How does the USPTO handle prior art that was previously considered during the original examination?

Accepted Answer

The USPTO has specific guidelines for handling prior art in ex parte reexamination that was previously considered during the original examination. According to MPEP 2244:

"If prior art patents or printed publications are presented by the reexamination requester for review in a reexamination proceeding, and the requester has not had the patents or printed publications applied as prior art and also has not had the patents or printed publications cited as prior art, the patents and printed publications will be considered to decide whether a substantial new question of patentability is raised."

This means that:

Previously unconsidered prior art will be reviewed to determine if it raises a substantial new question of patentability.
Prior art that was already applied or cited during the original examination may not be sufficient grounds for reexamination unless it is being presented in a new light or context.
The examiner must carefully evaluate whether the previously considered prior art, when combined with new evidence or arguments, raises a substantial new question of patentability.

The USPTO's approach ensures that reexamination is not used to rehash issues already addressed in the original examination, while still allowing for reconsideration if new evidence or perspectives are presented.

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ex parte reexamination
prior art
original examination
substantial new question of patentability

Question 9

What is the procedure for handling a reexamination request filed during a pending reexamination?

Accepted Answer

What is the procedure for handling a reexamination request filed during a pending reexamination?

When a reexamination request is filed during a pending reexamination, the following procedure is followed:

The new request is assigned to the examiner of the pending reexamination.
The examiner determines if a substantial new question of patentability is raised.
If a new question is raised, the new request is merged with the pending reexamination.
If no new question is raised, the new request is denied.

MPEP 2686.01 states: "If reexamination is ordered on the subsequent request, the reexamination will be consolidated with the pending reexamination proceeding." This ensures efficient examination and avoids duplicate efforts.

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Question 10

How does the International Searching Authority assess unity of invention?

Accepted Answer

How does the International Searching Authority assess unity of invention?

The International Searching Authority (ISA) assesses unity of invention by examining whether the claims in an international application are linked by a common inventive concept. According to MPEP 1850:

"Unity of invention has to be considered in the first place only in relation to the independent claims in an international application and not the dependent claims."

The ISA follows these steps:

Identify the independent claims
Determine the special technical features of each independent claim
Assess whether there is a technical relationship among the inventions involving one or more of the same or corresponding special technical features
If unity is lacking, the ISA may invite the applicant to pay additional fees for searching additional inventions

If the applicant disagrees with the ISA's assessment, they can pay the additional fees under protest and request a review of the unity of invention determination.

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How should examiners evaluate applicant’s arguments regarding the improvement to computer functionality or other technology?

How can patent examiners directly access foreign patent information?

What constitutes an improvement to technology under patent eligibility?

What is the process for mailing decisions and Office actions in inter partes reexamination?

How should patent examiners evaluate the “improvements” consideration?

How does the “person of ordinary skill in the art” concept affect claim interpretation?

How does the USPTO evaluate claims of improved computer functionality in patent applications?

How does the USPTO handle prior art that was previously considered during the original examination?

What is the procedure for handling a reexamination request filed during a pending reexamination?

How does the International Searching Authority assess unity of invention?