Q: How are non-written disclosures treated in international patent searches?

According to MPEP 1843.01 , non-written disclosures are treated as follows in international patent searches: Non-written disclosures (e.g., oral disclosures, use, exhibitions) are not directly relevant prior art for international searches They become relevant only if substantiated by a written disclosure available to the public before the international filing date If a written disclosure referring to a non-written disclosure is published on or after the international filing date, it should be mentioned separately in the search report The MPEP states: " A non-written disclosure such as an oral disclosure, use, exhibition or other means of disclosure is not relevant prior art for the purposes of the international search unless it is substantiated by a written disclosure made available to the public prior to the international filing date and it is the written disclosure which constitutes the prior art. " To learn more: non-written disclosures oral disclosures exhibitions international patent search prior art

Question 1

How are non-written disclosures treated in international patent searches?

Accepted Answer

According to MPEP 1843.01, non-written disclosures are treated as follows in international patent searches:

Non-written disclosures (e.g., oral disclosures, use, exhibitions) are not directly relevant prior art for international searches
They become relevant only if substantiated by a written disclosure available to the public before the international filing date
If a written disclosure referring to a non-written disclosure is published on or after the international filing date, it should be mentioned separately in the search report

The MPEP states: "A non-written disclosure such as an oral disclosure, use, exhibition or other means of disclosure is not relevant prior art for the purposes of the international search unless it is substantiated by a written disclosure made available to the public prior to the international filing date and it is the written disclosure which constitutes the prior art."

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Question 2

What role do analogous arts play in patent searches?

Accepted Answer

What role do analogous arts play in patent searches?

Analogous arts play a crucial role in patent searches by expanding the scope of relevant prior art. The MPEP 904.02 states:

"The search should include analogous arts though the inventor may have been unaware of such art."

This principle is important because:

It helps identify non-obvious combinations or applications of existing technologies
It ensures a thorough examination of potential prior art beyond the immediate field of invention
It can reveal relevant solutions from different but related fields
It assists in evaluating the inventive step or non-obviousness of the claimed invention

Examiners must consider analogous arts to provide a comprehensive search and ensure the validity of granted patents. This approach helps maintain the integrity of the patent system by preventing the issuance of patents for inventions that may be obvious to those skilled in related fields.

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Question 3

How does subclass harmonization affect patent searches?

Accepted Answer

Subclass harmonization significantly impacts patent searches by creating a more unified classification system across major patent offices. The MPEP's description of harmonized subclasses between the USPC, EPO, and JPO indicates that:

"Subclasses that have been harmonized have a designation of "EPO," "JPO," or "EPO/JPO" in parentheses following the subclass title to indicate if the subclass has been harmonized with the EPO or JPO or with both systems."

This harmonization allows searchers to:

Use consistent classification codes across different patent databases
Conduct more comprehensive prior art searches
Reduce the likelihood of missing relevant patents due to classification differences
Save time by avoiding the need to translate between different classification systems

Overall, harmonized subclasses enhance the efficiency and effectiveness of patent searches, particularly for those conducting global patent landscape analyses or international patentability assessments.

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Question 4

How does the USPTO determine if species are independent or distinct?

Accepted Answer

The USPTO determines if species are independent or distinct based on specific criteria outlined in the Manual of Patent Examining Procedure (MPEP). According to MPEP 808.01(a):

"Species may be either independent or related under the particular disclosure. Where species under a claimed genus are not connected in any of design, operation, or effect under the disclosure, the species are independent inventions."

The examiner considers the following factors:

Mutually exclusive characteristics: Species have features that are not shared with other species.
Search burden: Different species require separate search strategies or queries.
Prior art applicability: Art applicable to one species would likely not be applicable to another.
Separate classification: Species belong to different classification subgroups.

If these criteria are met, the examiner may issue a species election requirement, asking the applicant to choose a specific species for examination.

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Question 5

What is the role of the United States Patent and Trademark Office (USPTO) as an International Searching Authority?

Accepted Answer

The USPTO, as an International Searching Authority, has two primary functions:

Establish international search reports
Prepare written opinions for international applications having an international filing date on or after January 1, 2004

According to MPEP 1840, "As such an Authority, the primary functions are to establish (1) international search reports and (2) for international applications having an international filing date on or after January 1, 2004, written opinions." This is in accordance with PCT Article 16 and PCT Rule 43bis.

To learn more:

International Searching Authority
USPTO
PCT
International Search Report
Written Opinion

Question 6

How does considering variant embodiments affect prior art searches?

Accepted Answer

Considering variant embodiments significantly impacts prior art searches by:

Broadening the scope of the search to include potential variations of the claimed invention
Helping examiners identify relevant prior art that may not be an exact match to the disclosed embodiment
Ensuring a more comprehensive examination of patentability

MPEP 904.01(a) emphasizes that "any such variant encountered during the search should be recognized." This approach allows examiners to find prior art that may anticipate or render obvious the claimed invention, even if it doesn't precisely match the specific embodiment described in the application.

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Question 7

How did the Patent and Trademark Office Authorization Act of 2002 change reexamination procedures?

Accepted Answer

The Patent and Trademark Office Authorization Act of 2002, specifically Public Law 107-273, Section 13105, enacted on November 2, 2002, significantly changed reexamination procedures by amending 35 U.S.C. 303(a) and 312(a). The key change was:

"The existence of a substantial new question of patentability is not precluded by the fact that a patent or printed publication was previously cited by or to the Office or considered by the Office."

This amendment effectively overruled the previous In re Portola Packaging Inc. decision for reexaminations ordered on or after November 2, 2002. As a result:

Reexaminations ordered on or after November 2, 2002, can be based solely on old art.
The use of old art does not necessarily preclude the existence of a substantial new question of patentability.
Determinations of substantial new questions of patentability are now based on a fact-specific, case-by-case inquiry.

This change provided more flexibility in reexamination proceedings and allowed for a broader consideration of prior art in assessing patent validity.

To learn more:

Patent and Trademark Office Authorization Act of 2002
reexamination procedures
substantial new question of patentability
Portola Packaging

Question 8

What happens if there's a postal service interruption or emergency affecting patent filings?

Accepted Answer

In the event of a postal interruption or emergency, the USPTO will take the following actions:

These communications will provide instructions about filing patent applications and other patent-related papers. 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."

This ensures that applicants have clear guidance on how to proceed during such circumstances.

To learn more:

Postal Service
Patent Filing
Emergency Procedures
USPTO Announcements

Question 9

What should be included in a patent application abstract?

Accepted Answer

A patent application abstract should include a concise summary of the key technical elements of the invention. The MPEP 608.01(b) states:

The abstract should sufficiently describe the disclosure to assist readers in deciding whether there is a need for consulting the full patent text for details.

The abstract should cover:

The technical disclosure of the improvement
The nature and gist of the invention
The principal use of the invention

It's important to note that legal phraseology often used in patent claims should be avoided in the abstract.

To learn more:

abstract content
patent application
technical elements

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How are non-written disclosures treated in international patent searches?

What role do analogous arts play in patent searches?

How does subclass harmonization affect patent searches?

How does the USPTO determine if species are independent or distinct?

What is the role of the United States Patent and Trademark Office (USPTO) as an International Searching Authority?

How does considering variant embodiments affect prior art searches?

How did the Patent and Trademark Office Authorization Act of 2002 change reexamination procedures?

What happens if there’s a postal service interruption or emergency affecting patent filings?

What should be included in a patent application abstract?

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