Question 1

What is the purpose of 35 U.S.C. 121 in relation to double patenting?

Accepted Answer

The purpose of 35 U.S.C. 121 is to protect inventors from double patenting rejections that might arise due to administrative requirements imposed by the USPTO. As explained in the MPEP, citing Applied Materials Inc. v. Advanced Semiconductor Materials:

"[W]hen the existence of multiple patents is due to the administrative requirements imposed by the Patent and Trademark Office, 35 U.S.C. Section 121 provides that the inventor shall not be prejudiced by having complied with those requirements. Thus when two or more patents result from a PTO restriction requirement, whereby aspects of the original application must be divided into separate applications, Section 121 insulates the ensuing patents from the charge of double patenting."

This provision ensures that inventors are not unfairly penalized for complying with restriction requirements and filing divisional applications. However, this protection is subject to certain conditions, such as maintaining consonance with the original restriction requirement.

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Question 2

What is the relationship between species in patent applications?

Accepted Answer

The relationship between species in patent applications is an important factor in determining whether a restriction requirement is appropriate. According to MPEP 808.01(a):

"Where there is a relationship disclosed between species, such disclosed relation must be discussed and reasons advanced leading to the conclusion that the disclosed relation does not prevent restriction, in order to establish the propriety of restriction."

This means that if the application discloses a relationship between different species, the examiner must address this relationship when making a restriction requirement. The examiner needs to explain why the disclosed relationship is not sufficient to prevent a restriction. If no relationship is disclosed, the species are considered independent inventions, and a restriction may be more readily justified if other criteria are met.

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Question 3

What is the process for making a patent application special under the Patent Prosecution Highway?

Accepted Answer

What is the process for making a patent application special under the Patent Prosecution Highway?

The Patent Prosecution Highway (PPH) is a program that allows for expedited processing of patent applications. According to MPEP 708.01:

A request for participation in a Patent Prosecution Highway program may be granted by the Patents Business Center.

To make an application special under the PPH:

The applicant must have a corresponding application with allowable claims in a PPH partner office.
The applicant must submit a request to the USPTO for participation in the PPH program.
The request must include necessary documents, such as copies of allowed claims and office actions from the partner office.
If approved, the U.S. application will be advanced out of turn for examination.

This process allows for faster examination based on work already done by another patent office, potentially speeding up the overall patent granting process.

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Question 4

What is the legal basis for using admissions as prior art?

Accepted Answer

The use of admissions as prior art in patent law is supported by case law. Two significant cases cited in the MPEP provide the legal basis for this practice:

Riverwood Int'l Corp. v. R.A. Jones & Co., 324 F.3d 1346, 1354, 66 USPQ2d 1331, 1337 (Fed. Cir. 2003)
Constant v. Advanced Micro-Devices Inc., 848 F.2d 1560, 1570, 7 USPQ2d 1057, 1063 (Fed. Cir.1988)

These cases establish that admissions can be relied upon for both anticipation and obviousness determinations in patent examination and litigation.

For more information on admissions as prior art, refer to MPEP § 2129.

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Question 5

What is the examiner's role in evaluating experimental use claims?

Accepted Answer

When an applicant claims experimental use to counter a prima facie case of unpatentability, the patent examiner has a specific role in evaluating these claims. According to MPEP 2133.03(e)(4):

"Once alleged experimental activity is advanced by an applicant to explain a prima facie case of unpatentability, the examiner must determine whether the scope and length of the activity were reasonable in terms of the experimental purpose intended by the applicant and the nature of the subject matter involved."

The examiner's role is to assess whether the claimed experimental activities are reasonable given the applicant's stated experimental purpose and the nature of the invention. This evaluation involves considering various factors, including those listed in the MPEP, to determine if the use was genuinely experimental or if it constituted a public use or sale that would bar patentability.

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patent examiner
experimental use
patent examination
on-sale bar
public use

Question 6

How are merged reexamination proceedings handled by the USPTO?

Accepted Answer

When reexamination proceedings are merged, the USPTO follows specific guidelines to ensure efficient handling:

A single combined examiner's action is prepared for all merged proceedings.
Each action contains the control numbers of all involved proceedings on every page.
A single action cover mailing sheet is used for all parties involved.
The patent owner is required to maintain identical amendments in all merged reexamination files.

As stated in MPEP 2686.01: "Where merger is ordered, the prosecution will be conducted at the most advanced point possible for the first proceeding." This approach ensures that the merged proceedings are handled with the required "special dispatch."

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Question 7

Can supplemental restriction requirements be issued for applications containing nucleotide sequences?

Accepted Answer

Generally, supplemental restriction requirements are not issued for applications that have already received an action on their merits, unless there are extenuating circumstances. MPEP 2434 states:

"Note, however, that supplemental restriction requirements will not be advanced in applications that have already received an action on their merits in the absence of extenuating circumstances."

This guideline applies to all applications, including those containing nucleotide sequences. It ensures that applicants are not subjected to additional restrictions after substantive examination has begun, promoting efficiency and fairness in the patent examination process. However, examiners may issue supplemental restrictions if unusual circumstances arise that justify such action.

To learn more:

supplemental restriction requirements
nucleotide sequences
patent examination
USPTO policy

Question 8

What role does technology play in the routing and docketing of patent applications?

Accepted Answer

While MPEP 909 doesn't explicitly discuss technology, modern routing and docketing of patent applications heavily rely on advanced technological systems. These systems likely include:

Electronic Filing System (EFS-Web): Allows for digital submission of applications, facilitating initial routing.
Patent Application Location and Monitoring (PALM) system: Tracks the status and location of patent applications throughout the examination process.
Automated classification tools: Assist in routing applications to appropriate art units based on content analysis.
Case management software: Helps examiners manage their dockets and workload.

These technological tools aim to improve the efficiency and accuracy of the routing and docketing processes described in MPEP 909.

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Question 9

Are Issue Batch Numbers still used for tracking patent applications?

Accepted Answer

No, Issue Batch Numbers are no longer used for tracking patent applications at the USPTO. According to MPEP 1303.01:

"Reference to an Issue Batch Number is no longer necessary because the Office no longer stores and tracks applications according to issue batches."

This change reflects a modernization of the USPTO's tracking and management systems for patent applications. Instead of using batch numbers, the USPTO now likely uses more advanced digital tracking methods to manage applications throughout the examination and issuance process.

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Question 10

What are the implications of the 2007 USPTO policy change for pending applications with multiple nucleotide sequences?

Accepted Answer

The 2007 USPTO policy change, which rescinded the 1996 waiver allowing multiple nucleotide sequences in a single application, has specific implications for pending applications. MPEP 803.04 states:

"All pending applications are subject to the 2007 OG notice. Note, however, that supplemental restriction requirements will not be advanced in applications that have already received an action on their merits for multiple nucleotide sequences in the absence of extenuating circumstances."

This means that while all pending applications are subject to the 2007 policy, the USPTO will not issue new restriction requirements for applications that have already been examined with multiple nucleotide sequences, unless there are extenuating circumstances. This approach balances the new policy with fairness to applicants who filed under the previous understanding.

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2007 USPTO policy
pending applications
multiple nucleotide sequences
restriction requirements

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What is the purpose of 35 U.S.C. 121 in relation to double patenting?

What is the relationship between species in patent applications?

What is the process for making a patent application special under the Patent Prosecution Highway?

What is the legal basis for using admissions as prior art?

What is the examiner’s role in evaluating experimental use claims?

How are merged reexamination proceedings handled by the USPTO?

Can supplemental restriction requirements be issued for applications containing nucleotide sequences?

What role does technology play in the routing and docketing of patent applications?

Are Issue Batch Numbers still used for tracking patent applications?

What are the implications of the 2007 USPTO policy change for pending applications with multiple nucleotide sequences?