Question 1

What information is included in the examiner's statement for an inter partes reexamination?

Accepted Answer

The examiner's statement in an inter partes reexamination contains crucial information about the substantial new question of patentability. According to MPEP 2640:

"The statement will generally point out what it considers to be the substantial new question of patentability which presents a reasonable likelihood that the requester will prevail."

The examiner's statement typically includes:

Identification of the specific claims affected
An explanation of how the cited prior art raises a substantial new question of patentability
References to relevant portions of the prior art
A brief analysis of why the requester is likely to prevail

This statement serves as a guide for both the patent owner and the third party requester in understanding the basis for the reexamination and preparing their responses.

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Question 2

What are the benefits of using internet searching in patent examination?

Accepted Answer

Internet searching offers several benefits to patent examiners during the examination process. According to MPEP 904.02(c), some key advantages include:

Access to Non-Patent Literature (NPL): The internet provides a vast repository of technical and scientific information that may not be available in traditional patent databases.
Up-to-date Information: Internet sources often contain the most recent developments in various technical fields.
Diverse Sources: Examiners can access a wide range of sources, including academic papers, technical reports, and industry publications.
Efficiency: Internet searching can be faster and more comprehensive than manual searches of physical documents.

The MPEP states: "The internet provides an extensive source of non-patent literature that may be pertinent for many applications." This underscores the importance of internet searching as a complement to traditional patent database searches, enabling examiners to conduct more thorough and efficient prior art searches.

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Question 3

How does the examiner's decision granting a reexamination request differ from determining patentability?

Accepted Answer

The examiner's decision granting a reexamination request focuses on whether there is a substantial new question of patentability (SNQ) or a reasonable likelihood that the requester will prevail (RLP), rather than determining the ultimate patentability of the claims.

According to MPEP 2646:

"In the decision on the request, the examiner does not decide the ultimate question of patentability of the claims. Rather, the examiner only decides whether there is a SNQ/RLP established sufficient to grant the request and order reexamination."

This means that the examiner's decision to grant reexamination is based on finding that the request has raised a substantial question or shown a reasonable likelihood of success, but does not involve a full examination of the claims' patentability at this stage.

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Question 4

What electronic resources does STIC provide for patent examiners?

Accepted Answer

The Scientific and Technical Information Center (STIC) offers a wide range of electronic resources to support patent examiners in their work:

Online Databases: STIC provides access to numerous scientific and technical databases covering various fields of technology.
Electronic Journals: Examiners can access a vast collection of electronic journals through STIC's subscriptions.
E-Books: STIC maintains a library of electronic books relevant to patent examination.
Search Tools: STIC offers specialized search tools and interfaces for efficient prior art searching.

The MPEP 901.06(a) states: "Online databases available to examiners include numerous technical and scientific databases and links to external databases." This emphasizes the importance of electronic resources in modern patent examination.

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Question 5

What is an "earlier concluded examination or review" in the context of patent reexamination?

Accepted Answer

An "earlier concluded examination or review" is a key concept in determining whether a substantial new question of patentability exists. The MPEP defines it as:

The original examination of the application which matured into the patent
The examination of the patent in a reissue application that has resulted in a reissue of the patent
The examination of the patent in an earlier concluded reexamination or supplemental examination
The review of the patent in an earlier concluded trial by the Patent Trial and Appeal Board, such as a post-grant review, inter partes review, or covered business method review
Any other concluded contested proceeding which involved the patent

If the same question of patentability has been decided in an earlier concluded examination or review, it generally cannot form the basis for a new substantial question of patentability in a subsequent reexamination request.

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Question 6

What is the Foreign Patent Access System (FPAS)?

Accepted Answer

The Foreign Patent Access System (FPAS) is one of the platforms used by the USPTO to make foreign patents available. According to MPEP 903.03, Foreign patents received by the Office after October 1, 1995 are available on the USPTO's automated search systems, the Foreign Patent Access System (FPAS), Internet sites, and the Scientific and Technical Information Center (STIC) collections.

The FPAS is part of the USPTO's effort to provide digital access to foreign patent documents, making it easier for examiners and other users to search and retrieve foreign patent information.

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Question 7

How should patent examiners use Internet searching in their examination process?

Accepted Answer

Patent examiners can use Internet searching as part of their examination process, but they must follow specific guidelines to protect confidentiality and ensure appropriate use. According to MPEP 904.02(c):

For unpublished applications, Internet searches must be limited to the general state of the art and formulated to protect confidential proprietary information.
For published applications, reissue applications, or reexamination proceedings, examiners may use broader search queries including terminology related to the disclosed features and claim terminology.
Examiners must ensure compliance with confidentiality requirements in statutes and regulations.
Social media websites may be visited, but examiners are not authorized to participate or solicit assistance with patent examination.

The MPEP states, "Any Internet searching that is conducted is to be limited to searching for the information necessary for examination of the application or proceeding, such as the state of the art or the presence or absence of technical features in the prior art."

Examiners must also document their Internet search strategies according to established practices outlined in MPEP § 719.05 II.

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Question 8

What is the significance of patent family information in prior art searches?

Accepted Answer

What is the significance of patent family information in prior art searches?

Patent family information plays a crucial role in prior art searches for several reasons:

Comprehensive coverage: It allows examiners to identify related patents and applications across different countries, ensuring a thorough search.
Language accessibility: Patent family members may be available in different languages, making it easier for examiners to understand the technical content.
Priority date determination: Family information helps in identifying the earliest priority date, which is essential for determining prior art status.
Scope of protection: Examining family members can reveal variations in claim scope across jurisdictions.

As stated in MPEP 901.07, "Patent family information is available at the USPTO through the use of online search tools or from automated products that use the data from the International Patent Documentation Center (INPADOC)." This information enables examiners to conduct more efficient and effective prior art searches.

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Question 9

How does "having" function as a transitional phrase in patent claims?

Accepted Answer

How does "having" function as a transitional phrase in patent claims?

The transitional phrase "having" in patent claims can function in different ways depending on the context:

Open-ended transition: "Having" is generally interpreted as an open-ended transition, similar to "comprising," unless the specification or other circumstances suggest otherwise.
Closed transition: In some cases, "having" can be interpreted as a closed transition, similar to "consisting of," if the intrinsic evidence clearly indicates that intent.

According to MPEP 2111.03:

"Transitional phrases such as 'having' must be interpreted in light of the specification to determine whether open or closed claim language is intended."

When interpreting claims with "having" as a transitional phrase, examiners and practitioners should carefully consider the specification and prosecution history to determine the intended scope.

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Question 10

How does the USPTO approach searching for non-patent literature in prior art searches?

Accepted Answer

The USPTO recognizes the importance of non-patent literature (NPL) in prior art searches. According to MPEP 904.02:

"The search should cover the claimed subject matter and should also cover the disclosed features which might reasonably be expected to be claimed. The search should not be limited to the examples or embodiments given in the specification."

This guidance implicitly includes searching for relevant NPL. The USPTO's approach to NPL searches includes:

Utilizing specialized scientific and technical databases
Searching academic journals and conference proceedings
Reviewing trade publications and industry reports
Considering online resources, including websites and digital archives
Collaborating with scientific libraries and information centers

By thoroughly searching NPL sources, examiners can uncover relevant prior art that may not be found in patent databases, ensuring a more comprehensive examination of the state of the art.

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What information is included in the examiner’s statement for an inter partes reexamination?

What are the benefits of using internet searching in patent examination?

How does the examiner’s decision granting a reexamination request differ from determining patentability?

What electronic resources does STIC provide for patent examiners?

What is an “earlier concluded examination or review” in the context of patent reexamination?

What is the Foreign Patent Access System (FPAS)?

How should patent examiners use Internet searching in their examination process?

What is the significance of patent family information in prior art searches?

How does “having” function as a transitional phrase in patent claims?

How does the USPTO approach searching for non-patent literature in prior art searches?