Question 1

How does the duty to disclose apply to information from foreign patent offices?

Accepted Answer

The duty to disclose extends to information from foreign patent offices. MPEP 1418 states:

"Any information required to be disclosed pursuant to this section ... based on the results of any foreign search or examination report, may be submitted as part of a reply to an Office action and need not be submitted as a separate paper."

This means that patent owners must disclose relevant information from foreign patent offices, such as search reports or examination results. This information can be included in responses to USPTO office actions rather than requiring a separate submission. It's important to note that this duty applies to information that is material to patentability, regardless of its origin.

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Question 2

Are applications with different effective filing dates treated differently in interference searches?

Accepted Answer

Yes, applications with different effective filing dates require special consideration during interference searches. The MPEP 1302.08 states: "Examiners are reminded that some applications, such as continuation-in-part applications, may contain claims entitled to different effective filing dates (see MPEP §§ 2133.01 and 2152.01), and that each effective filing date should be considered when performing the interference search." This ensures that the search accounts for potential interfering subject matter across different time periods relevant to the application's claims.

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Question 3

What happens if there's a postal interruption or emergency affecting USPTO correspondence?

Accepted Answer

In the event of a postal interruption or emergency:

An announcement will be placed on the USPTO website at www.uspto.gov
A notice will be published in the Official Gazette
These communications will provide instructions about filing patent applications and other papers related to patent applications and patents

The USPTO Director may prescribe rules considering papers or fees filed on the date they would have been deposited with the USPS, but for postal service interruptions or emergencies.

As stated in MPEP 511: "In the event of a postal interruption or emergency, an announcement will be placed on the USPTO website at www.uspto.gov and a notice will be published in the Official Gazette, providing instructions about the filing of patent applications, and other papers related to patent applications and patents."

Question 4

How do equivalents affect prior art searches?

Accepted Answer

Equivalents significantly expand the scope of prior art searches during patent examination. As stated in MPEP 904.01(b), examiners must consider:

"All subject matter that is the equivalent of the subject matter as defined in the claim, even though different from the definition in the claim, must be considered unless expressly excluded by the claimed subject matter."

This means that when conducting a prior art search, patent examiners must look beyond the exact wording of the claims and consider functionally equivalent technologies or methods. This broader search helps ensure a more comprehensive examination and reduces the likelihood of overlooking relevant prior art.

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Question 5

What factors must an examiner consider before making a late restriction requirement?

Accepted Answer

When considering a late restriction requirement (i.e., after an action on the merits), an examiner must take into account specific factors. According to MPEP 811:

"Before requiring restriction of claims previously examined on the merits, the examiner must consider whether there will be a serious search and/or examination burden if restriction is not required."

This means the examiner must evaluate:

The potential for a serious search burden if restriction is not made
The potential for a serious examination burden if restriction is not made

Only if these burdens are deemed significant can the examiner justify a late restriction requirement.

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Question 6

How should patent examiners approach the examination process?

Accepted Answer

Patent examiners should approach the examination process with a thorough and balanced perspective. The MPEP provides the following guidance:

Read and understand the claimed invention
Conduct a prior art search
Review and analyze the application in conjunction with the state of the prior art
Determine if the claims meet all patentability requirements
Clearly articulate any rejections early in the prosecution process
Review all evidence, including applicant's arguments and responses to rejections

The MPEP also emphasizes the importance of allowing valid claims:

"Although this part of the Manual explains the procedure in rejecting claims, the examiner should never overlook the importance of his or her role in allowing claims which properly define the invention."

This balanced approach ensures a fair and thorough examination process.

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Question 7

What fees are required for entering the U.S. national stage?

Accepted Answer

The fees required for entering the U.S. national stage include:

Basic national fee (37 CFR 1.492(a)): Must be paid within 30 months from the priority date to avoid abandonment.
Search fee (37 CFR 1.492(b)): Due on commencement of the national stage.
Examination fee (37 CFR 1.492(c)): Due on commencement of the national stage.
Application size fee (37 CFR 1.492(j)): If applicable, based on the number of pages in the international publication.
Excess claims fees (37 CFR 1.492(d)-(e)): If applicable.
Multiple dependent claim fee (37 CFR 1.492(f)): If applicable.

Additional fees may include:

Surcharge fee (37 CFR 1.492(h)): For late submission of search fee, examination fee, or inventor's oath/declaration.
Processing fee (37 CFR 1.492(i)): For accepting an English translation later than 30 months from the priority date.

As stated in MPEP 1893.01(c): "Because the national stage fees are subject to change, applicants and examiners should always consult the Official Gazette for the current fee listing."

It's important to note that the basic national fee must be paid within the 30-month period, while other fees may be paid later with a surcharge.

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Question 8

What are the major concepts of the PCT?

Accepted Answer

The major concepts of the Patent Cooperation Treaty (PCT) include:

Filing a single international application that can have effect in multiple countries
Standardized format and language for applications
Automatic designation of all contracting countries
Establishment of an international search report and written opinion
Publication of the international application
Option for international preliminary examination

As stated in the MPEP, The PCT also provides for the establishment of an international search report and written opinion at 16 months from the priority date and publication of the international application after 18 months from the priority date.

These concepts aim to simplify and streamline the process of seeking patent protection in multiple countries.

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Question 9

How does MPEP 904 guide examiners in searching non-patent literature?

Accepted Answer

MPEP 904 provides guidance on searching non-patent literature (NPL) as part of a comprehensive prior art search. The section emphasizes the importance of NPL in certain fields:

"Examiners are also encouraged to independently search other pertinent electronic information sources such as the Internet, project XSearch, and commercial databases."

Key points about NPL searching include:

Examiners should consider NPL sources relevant to the invention's field
Commercial databases and the Internet are valuable resources
Project XSearch is mentioned as a specific tool for NPL searching
The choice of NPL sources depends on the technology area being examined

By including NPL in their searches, examiners can ensure a more thorough examination of potential prior art.

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Question 10

How can the Chief Administrative Patent Judge address issues related to substantial new questions of patentability in ex parte reexaminations?

Accepted Answer

The Chief Administrative Patent Judge has the authority to address issues related to substantial new questions of patentability in ex parte reexaminations. According to MPEP 1002.02(f):

"If raised properly during ex parte reexamination and in a subsequent appeal, issues relating to an examiner's determination that a reference raises a substantial new question of patentability. See 75 FR 36357 (June 25, 2010). This authority may be re-delegated to the panel of the Patent Trial and Appeal Board deciding the appeal in the reexamination."

This means that the Chief Administrative Patent Judge can review and decide on issues related to an examiner's determination of a substantial new question of patentability when these issues are properly raised during the reexamination process and subsequent appeal. The authority can also be delegated to the PTAB panel handling the appeal.

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ex parte reexamination
substantial new question of patentability
Chief Administrative Patent Judge
PTAB

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How does the duty to disclose apply to information from foreign patent offices?

Are applications with different effective filing dates treated differently in interference searches?

What happens if there’s a postal interruption or emergency affecting USPTO correspondence?

How do equivalents affect prior art searches?

What factors must an examiner consider before making a late restriction requirement?

How should patent examiners approach the examination process?

What fees are required for entering the U.S. national stage?

What are the major concepts of the PCT?

How does MPEP 904 guide examiners in searching non-patent literature?

How can the Chief Administrative Patent Judge address issues related to substantial new questions of patentability in ex parte reexaminations?