Question 1

What constitutes a material mistake in a patent application publication?

Accepted Answer

A material mistake in a patent application publication is one that affects the public's ability to understand the technical disclosure or determine the scope of provisional rights. The MPEP provides specific examples:

Omission of claims included in the original specification
Exclusion of part of the specification that supports published claims
Failure to include originally filed drawings
For applications filed on or after September 16, 2012, omission of a timely submitted benefit claim to a prior-filed nonprovisional application

The MPEP states: "A material mistake means a mistake that affects the public's ability to appreciate the technical disclosure of the patent application publication or determine the scope of the provisional rights that an applicant may seek to enforce upon issuance of a patent."

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Question 2

How does the ISA determine if unity of invention exists a priori?

Accepted Answer

How does the ISA determine if unity of invention exists a priori?

The International Searching Authority (ISA) determines unity of invention a priori by examining the claims before considering the prior art. According to MPEP 1850:

"Lack of unity of invention may be directly evident 'a priori,' that is, before considering the claims in relation to any prior art, or may only become apparent 'a posteriori,' that is, after taking the prior art into consideration."

In an a priori assessment:

The ISA examines the claims to identify a common technical feature.
If a common technical feature is found, unity of invention is presumed to exist.
This assessment is based solely on the claims, without reference to prior art.

For example, if multiple independent claims share a specific structural element or process step, this could indicate unity of invention a priori. However, the final determination may still depend on the a posteriori examination, which considers the prior art.

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Question 3

How are other transitional phrases like "having" interpreted in patent claims?

Accepted Answer

The interpretation of other transitional phrases like "having" in patent claims depends on the context and the specification. The MPEP states, Transitional phrases such as "having" must be interpreted in light of the specification to determine whether open or closed claim language is intended.

This means that unlike the more standardized phrases like "comprising" or "consisting of", the interpretation of "having" can vary. It may be interpreted as open-ended (similar to "comprising") or closed (similar to "consisting of") depending on the specific language in the specification and the overall context of the invention.

For example, the MPEP cites cases where "having" has been interpreted differently:

In Lampi Corp. v. American Power Products Inc., "having" was interpreted as open terminology.
In Crystal Semiconductor Corp. v. TriTech Microelectronics Int'l Inc., the term "having" in the transitional phrase did not create a presumption that the body of the claim was open.

This variability in interpretation underscores the importance of clear and precise language in patent drafting and the need for careful analysis during patent examination and litigation.

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Question 4

How is foreign priority handled when the application is in issue?

Accepted Answer

When a claim for foreign priority or the certified copy of the foreign application is filed after the date of payment of the issue fee but before the patent is granted, special procedures apply.

According to the MPEP: When the claim for foreign priority or the certified copy of the foreign application is filed after the date of payment of the issue fee but prior to the date of grant of the patent, the foreign priority claim or certified copy will be placed in the file record but there may be no review of the papers and the patent when published will not include the priority claim.

To have the foreign priority claim or certified copy considered after publication of the patent:

For more information on this process, refer to MPEP § 216.01.

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Question 5

What does the transitional phrase "comprising" mean in a patent claim?

Accepted Answer

The transitional phrase "comprising" in a patent claim is inclusive and open-ended. According to the MPEP, The transitional term "comprising", which is synonymous with "including," "containing," or "characterized by," is inclusive or open-ended and does not exclude additional, unrecited elements or method steps.

This means that a claim using "comprising" allows for the inclusion of additional elements or steps beyond those explicitly stated in the claim. For example, a claim for a device "comprising A, B, and C" would cover devices that include A, B, and C, as well as devices that include A, B, C, and additional elements.

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Question 6

How can someone obtain copies of assignment records for pending or abandoned applications?

Accepted Answer

The process for obtaining copies of assignment records for pending or abandoned applications depends on whether the application is open to the public. The MPEP states:

'Copies of assignment records relating to pending or abandoned patent applications which are open to the public pursuant to 37 CFR 1.11 or for which copies or access may be supplied pursuant to 37 CFR 1.14 are available to the public.'

For applications that are not open to the public, the process is more restricted:

'For pending or abandoned applications which are not open to the public pursuant to 37 CFR 1.11 or for which copies or access may not be supplied pursuant to 37 CFR 1.14, information related thereto is only obtainable upon a proper showing of written authority.'
The required written authority varies depending on the application filing date. For applications filed on or after September 16, 2012, it must come from an inventor, applicant, assignee, patent practitioner of record, or someone with written authority from these parties.

Question 7

What are CPC symbols and how do they affect patent application assignment?

Accepted Answer

Cooperative Patent Classification (CPC) symbols are standardized codes used to classify patent documents according to their technical content. In the context of patent application assignment, CPC symbols play a crucial role in determining which examiner will review a new application.

As stated in MPEP 909.01(a):

"...an automated routing system that uses the CPC symbols on an application to determine the best available examiner to work on that individual application."

The CPC symbols effectively serve as a guide to match the technical subject matter of an application with the expertise of available examiners, ensuring a more efficient and accurate examination process.

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Question 8

What is the purpose of the Glossary and Synonyms sections in CPC Definitions?

Accepted Answer

The Glossary and Synonyms sections in CPC Definitions serve important purposes in clarifying terminology and aiding in patent searches. According to MPEP 905.02:

Glossary of terms: "This section consists of definitions for significant words or phrases found in the titles or definition statements."

Synonyms and Keywords: "This is an optional section establishing synonyms, keywords, abbreviations and acronyms from terms used in the patent documents themselves or in technical literature."

The MPEP further explains, "This section aids in formulating search queries in electronic searching in the technical field." These sections are crucial for:

Ensuring consistent interpretation of technical terms
Facilitating more comprehensive and accurate patent searches
Bridging gaps between different terminologies used in patent documents and technical literature

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Question 9

What is the CPC database and how does it handle patent family information?

Accepted Answer

The CPC (Cooperative Patent Classification) database is a system that maintains technical information about patent family documents. According to MPEP 905.03(a):

"The CPC database maintains technical information regarding the patent family documents for each patent document included."

In this database, CPC symbols are associated with patent families rather than individual documents. This means that when a document is classified, the symbol is stored as an association between the symbol and the entire patent family. As stated in the MPEP:

"When a document is classified in CPC, the symbol associated with the document is stored in the CPC database as an association between the symbol and patent family in which the document is a member."

This approach ensures consistency across related patent documents and simplifies the classification process.

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What constitutes a material mistake in a patent application publication?

How does the ISA determine if unity of invention exists a priori?

How are other transitional phrases like “having” interpreted in patent claims?

How is foreign priority handled when the application is in issue?

What does the transitional phrase “comprising” mean in a patent claim?

How can someone obtain copies of assignment records for pending or abandoned applications?

What are CPC symbols and how do they affect patent application assignment?

What is the purpose of the Glossary and Synonyms sections in CPC Definitions?

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What is the CPC database and how does it handle patent family information?