Q: What types of inventions are considered patentable?

According to 35 U.S.C. 101 , patentable inventions include: Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title. This statute outlines four main categories of patentable subject matter: processes, machines, manufactures, and compositions of matter. Improvements to existing inventions in these categories may also be patentable. For more detailed information on what is not considered patentable, refer to MPEP §§ 2104 – 2109 and 2157 . To learn more: patentable inventions patent subject matter USPTO patent law

Question 1

Why are amendments to refer to CPAs as continuation or divisional applications not allowed?

Accepted Answer

Amendments to refer to Continued Prosecution Applications (CPAs) as continuation or divisional applications are not allowed because they are unnecessary and can potentially cause confusion. The MPEP ¶ 2.34 explains:

"As set forth in 37 CFR 1.53(d)(7), a request for a CPA is the specific reference required by 35 U.S.C. 120 to every application assigned the application number identified in such request."

This means that the CPA itself already serves as the legally required reference to the prior application. Adding additional references through amendments is redundant and could potentially lead to inconsistencies or misinterpretations in the patent record.

For more information on 35 U.S.C. 120, visit: 35 U.S.C. 120.

For more information on CPA, visit: CPA.

For more information on patent law, visit: patent law.

Question 2

Which U.S. Code sections are relevant to claiming benefit of an earlier filing date?

Accepted Answer

The MPEP ¶ 2.11 mentions several U.S. Code sections relevant to claiming the benefit of an earlier filing date:

This application is claiming the benefit of prior-filed application No.[1] under 35 U.S.C. 120, 121, 365(c), or 386(c).

These sections cover different scenarios:

35 U.S.C. 120: Benefit of earlier filing date in the United States
35 U.S.C. 121: Divisional applications
35 U.S.C. 365(c): Benefit of earlier filing date; national application
35 U.S.C. 386(c): Benefit of earlier filing date; international design application

Each of these sections provides specific conditions under which an application can claim the benefit of an earlier filing date.

For more information on earlier filing date, visit: earlier filing date.

For more information on patent law, visit: patent law.

Question 3

What types of inventions are considered patentable?

Accepted Answer

According to 35 U.S.C. 101, patentable inventions include:

Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.

This statute outlines four main categories of patentable subject matter: processes, machines, manufactures, and compositions of matter. Improvements to existing inventions in these categories may also be patentable.

For more detailed information on what is not considered patentable, refer to MPEP §§ 2104 – 2109 and 2157.

To learn more:

Question 4

What is the significance of claiming benefit to a prior application in a divisional?

Accepted Answer

Claiming benefit to a prior application is crucial for divisional applications as it allows the divisional to retain the earlier filing date of the parent application. This can be significant for:

Establishing priority over potential prior art
Extending the potential patent term
Maintaining continuity in the patent family

The MPEP ¶ 2.01 states:

"Should applicant desire to claim the benefit of the filing date of the prior application, attention is directed to 35 U.S.C. 120, 37 CFR 1.78, and MPEP § 211 et seq."

To properly claim this benefit, applicants must comply with the requirements set forth in 35 U.S.C. 120, 37 CFR 1.78, and MPEP § 211, which include making a proper benefit claim and ensuring continuity of disclosure.

For more information on Divisional application, visit: Divisional application.

For more information on patent law, visit: patent law.

Question 5

What is the significance of avoiding 'undue multiplication of references' in patent examination?

Accepted Answer

The concept of avoiding 'undue multiplication of references' in patent examination is mentioned in MPEP 707.07(g). The MPEP states:

"The examiner ordinarily should reject each claim on all valid grounds available, avoiding, however, undue multiplication of references."

This guideline is significant because it aims to balance thoroughness with efficiency in patent examination. It means that examiners should:

Provide comprehensive rejections covering all valid grounds
Use a reasonable number of references to support rejections
Avoid excessive citation that could obscure the main reasons for rejection
Focus on the most relevant and strongest prior art references

By avoiding undue multiplication of references, examiners can provide clear, focused rejections that applicants can more easily understand and respond to, promoting more efficient patent prosecution.

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Question 6

What is the significance of a national application being made under 35 U.S.C. 111?

Accepted Answer

What is the significance of a national application being made under 35 U.S.C. 111?

A national application made under 35 U.S.C. 111 signifies that it is filed directly with the United States Patent and Trademark Office (USPTO) and follows the standard U.S. patent application process.

The MPEP 201.01 states: 'A national application is one that was filed in the United States Patent and Trademark Office (USPTO) under 35 U.S.C. 111.' This means that the application is subject to U.S. patent laws and procedures from the outset.

Applications filed under 35 U.S.C. 111 include:

Original (nonprovisional) applications
Reissue applications
Design applications
Plant applications
Provisional applications

These applications are distinct from international applications that enter the national stage in the U.S. under 35 U.S.C. 371.

For more information on patent application types, visit: patent application types.

For more information on patent law, visit: patent law.

For more information on USPTO, visit: USPTO.

Question 7

What is the relationship between conception and diligence in patent law?

Accepted Answer

In patent law, there is a crucial relationship between conception and diligence. According to the MPEP, Where conception occurs prior to the date of the reference, but reduction to practice is afterward, it is not enough merely to allege that the inventor or inventors had been diligent. Rather, applicant must show evidence of facts establishing diligence.

This means that when an inventor claims to have conceived an invention before a prior art reference but reduced it to practice after, they must provide evidence of diligence in the interim period. The MPEP further clarifies, In determining the sufficiency of a 37 CFR 1.131(a) affidavit or declaration, diligence need not be considered unless conception of the invention prior to the effective date is clearly established.

Therefore, the process typically follows this order:

Establish conception prior to the effective date of the reference
If conception is established, then demonstrate diligence from just before the reference date until reduction to practice

This relationship ensures that inventors who conceive an idea early but take time to reduce it to practice can still establish priority, provided they were diligent in their efforts.

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Question 8

What is the purpose of a divisional application in patent law?

Accepted Answer

What is the purpose of a divisional application in patent law?

A divisional application is a type of patent application that allows an inventor to pursue protection for different aspects of an invention that were disclosed but not claimed in a parent application. According to MPEP 201.06:

A later application for an independent or distinct invention, carved out of a pending application and disclosing and claiming only subject matter disclosed in the earlier or parent application, is known as a divisional application or 'division.'

The main purposes of a divisional application are:

To protect multiple inventions disclosed in a single parent application
To respond to a restriction requirement issued by the USPTO
To pursue broader or different claim scope than what was allowed in the parent application

Divisional applications are filed under 37 CFR 1.53(b) and can benefit from the filing date of the parent application for the common subject matter.

For more information on Divisional application, visit: Divisional application.

For more information on patent law, visit: patent law.

Question 9

What is the nexus requirement for secondary considerations in patent law?

Accepted Answer

The nexus requirement is crucial when presenting secondary considerations as evidence of nonobviousness. According to MPEP 716.01(b):

"To be given substantial weight in the determination of obviousness or nonobviousness, evidence of secondary considerations must be relevant to the subject matter as claimed, and therefore the examiner must determine whether there is a nexus between the merits of the claimed invention and the evidence of secondary considerations."

A nexus is a factually and legally sufficient connection between the objective evidence and the claimed invention. It ensures that the evidence is actually related to the unique aspects of the invention being claimed, rather than to features already known in the prior art.

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Question 10

What is the legal status of the Manual of Patent Examining Procedure (MPEP)?

Accepted Answer

The Manual of Patent Examining Procedure (MPEP) holds a unique legal status in patent law. According to MPEP 101:

The Manual does not have the force of law or the force of the rules in Title 37 of the Code of Federal Regulations.

This means:

The MPEP is not legally binding like statutes or regulations
It serves as an interpretive guide for patent examiners and practitioners
Courts may give it deference but are not bound by its contents

However, the MPEP is highly influential because it:

Reflects official USPTO policies and procedures
Is used by examiners in their day-to-day work
Provides valuable guidance for patent applicants and attorneys

While not law, the MPEP is an essential resource for understanding and navigating the patent examination process.

For more information on patent law, visit: patent law.

For more information on USPTO Guidelines, visit: USPTO Guidelines.

Question 11

What is the legal basis for using interference testimony to antedate a reference?

Accepted Answer

The legal basis for using interference testimony to antedate a reference is rooted in patent law and practice, as documented in the Manual of Patent Examining Procedure (MPEP). Specifically, MPEP 715.07(b) cites a legal precedent:

Ex parte Bowyer, 1939 C.D. 5, 42 USPQ 526 (Comm'r Pat. 1939).

This case established the practice of using interference testimony in lieu of a 37 CFR 1.131(a) affidavit or declaration to antedate a reference. It's important to note that this practice is primarily applicable to pre-AIA applications or when overcoming pre-AIA 35 U.S.C. 102(g) rejections in AIA applications.

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Question 12

What is the legal basis for the USPTO's English translation requirement for assignments?

Accepted Answer

The legal basis for the USPTO's English translation requirement for assignments is found in the Code of Federal Regulations, specifically 37 CFR 3.26. This regulation is referenced in MPEP 302.02, which states:

37 CFR 3.26 English language requirement.

The regulation mandates that non-English documents must be accompanied by an English translation signed by the translator. This requirement ensures clarity, consistency, and accessibility of patent-related documents within the U.S. patent system.

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Question 13

What is the legal basis for the USPTO's authority to require information?

Accepted Answer

The USPTO's authority to require information during patent examination is rooted in statutory law. According to MPEP 704.10:

The authority for the Office to make such requirements arises from the statutory requirements of examination pursuant to 35 U.S.C. 131 and 132.

Specifically:

35 U.S.C. 131 requires the USPTO to examine applications and issue patents when appropriate.
35 U.S.C. 132 provides for USPTO notifications to applicants and reexamination of applications.

This legal basis has been affirmed by the courts. As noted in MPEP 704.10, the Federal Circuit in Star Fruits S.N.C. v. United States upheld the USPTO's authority to compel disclosure of information pertinent to patentability, even when the applicant disagrees with the examiner's view of the applicable law.

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Question 14

What is the legal basis for denying amendments to CPA specifications?

Accepted Answer

The legal basis for denying amendments to Continued Prosecution Application (CPA) specifications that attempt to reference prior applications stems from both federal regulations and patent law. Specifically:

37 CFR 1.53(d)(7): This regulation establishes that a CPA request itself serves as the specific reference required by 35 U.S.C. 120.
35 U.S.C. 120: This statute outlines the requirements for claiming the benefit of an earlier filing date in the United States.

According to MPEP ¶ 2.34:

As set forth in 37 CFR 1.53(d)(7), a request for a CPA is the specific reference required by 35 U.S.C. 120 to every application assigned the application number identified in such request. Thus, there is no need to amend the first sentence(s) of the specification to refer back to the prior application and any such amendment shall be denied entry.

This means that the CPA filing itself legally establishes the necessary connection to the prior application, making any specification amendment both redundant and impermissible.

For more information on 35 U.S.C. 120, visit: 35 U.S.C. 120.

For more information on CPA, visit: CPA.

For more information on patent law, visit: patent law.

Question 15

What is the legal basis for correcting typographical errors in recorded assignment documents?

Accepted Answer

The legal basis for correcting typographical errors in recorded assignment documents is primarily found in the Manual of Patent Examining Procedure (MPEP) and the Code of Federal Regulations (CFR). Specifically:

Additionally, case law supports these procedures. The MPEP cites:

See In re Abacab International Computers Ltd., 21 USPQ2d 1078 (Comm'r Pat. 1987).

This case reinforces the USPTO's authority to correct such errors and the procedures for doing so. The combination of statutory regulations, administrative procedures, and case law provides a comprehensive legal framework for addressing typographical errors in recorded assignment documents.

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Question 16

What is the effect of filing a continuation or continuation-in-part application on the parent application?

Accepted Answer

Filing a continuation or continuation-in-part (CIP) application does not automatically affect the status of the parent application. The parent application continues to be examined or remains patented (if already issued) independently of the child application.

Key points to note:

1. The parent application remains pending unless expressly abandoned, allowed to go abandoned, or issued as a patent.

2. Filing a continuation or CIP does not automatically abandon the parent application.

3. Prosecution can continue in both the parent and child applications simultaneously.

The MPEP states: "The mere filing of a continuation-in-part application does not itself create a presumption that the applicant acquiesces in any rejections which may be outstanding in the copending national nonprovisional application or applications upon which the continuation-in-part application relies for benefit."

However, applicants should be aware of potential double patenting issues that may arise between the parent and child applications.

Question 17

What is the difference between a derivation proceeding and using 37 CFR 1.130 provisions?

Accepted Answer

The MPEP 717.01(d) outlines the key differences between a derivation proceeding and using the provisions of 37 CFR 1.130:

Derivation Proceeding:

Used when there are competing claims to the same or substantially the same invention
Resolves who the true inventor is when different inventive entities are involved
Initiated by filing a petition pursuant to 37 CFR 42.401 et seq.
Applicable when an affidavit or declaration contends that an inventor named in a U.S. patent or patent application publication derived the claimed invention

37 CFR 1.130 Provisions:

Used to overcome certain prior art rejections
Not available when dealing with patentably indistinct claims between different parties
Can be used when the rejection is based on disclosures other than U.S. patents or patent application publications
Available when the affidavit or declaration does not contend derivation but instead shows earlier public disclosure or invention

The MPEP states: "Permitting two different applicants to each aver or declare that an inventor named in the other application derived the claimed invention without a derivation proceeding to resolve who the true inventor is could result in the Office issuing two patents containing patentably indistinct claims to two different parties."

This distinction ensures that the appropriate legal mechanism is used to resolve inventorship disputes and prevent improper issuance of multiple patents for the same invention.

To learn more:

37 CFR 1.130

Question 18

What is the difference between a continuation application and a provisional application?

Accepted Answer

Continuation applications and provisional applications are distinct types of patent applications with different purposes and requirements. A key difference is noted in MPEP 201.07:

An application claiming the benefit of a provisional application under 35 U.S.C. 119(e) should not be called a 'divisional' of the provisional application.

This guidance also applies to continuation applications. The main differences include:

Continuation applications are based on nonprovisional applications and claim benefit under 35 U.S.C. 120, 121, 365(c), or 386(c)
Provisional applications are placeholder applications that can be claimed as priority under 35 U.S.C. 119(e)
Continuation applications must have the same disclosure as the parent application
Provisional applications do not need to meet the same formal requirements as nonprovisional applications

For specific requirements related to provisional applications, refer to MPEP § 211 et seq.

For more information on continuation application, visit: continuation application.

For more information on patent law, visit: patent law.

For more information on provisional application, visit: provisional application.

Question 19

What is the difference between 37 CFR 1.130(a) declarations and 37 CFR 1.132 affidavits?

Accepted Answer

The main difference between 37 CFR 1.130(a) declarations and 37 CFR 1.132 affidavits lies in their applicability to different versions of patent law:

37 CFR 1.130(a) declarations are used for applications subject to the first inventor to file provisions of the AIA (America Invents Act).
37 CFR 1.132 affidavits are used for applications subject to pre-AIA 35 U.S.C. 102 and 103.

The MPEP states: Thus, the Office will treat affidavits or declarations of attribution for applications subject to the current 35 U.S.C. 102 as affidavits or declarations under 37 CFR 1.130, and affidavits or declarations of attribution for applications subject to pre-AIA 35 U.S.C. 102 as affidavits or declarations under 37 CFR 1.132, regardless of whether the affidavit or declaration is designated as an affidavit or declaration under 37 CFR 1.130, 1.131, or 1.132.

This distinction is important for determining which type of declaration or affidavit to use based on the applicable law for a given patent application.

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Question 20

What is piecemeal examination in patent law?

Accepted Answer

Piecemeal examination refers to the practice of examining a patent application in a fragmented or incomplete manner. According to MPEP 707.07(g), "Piecemeal examination should be avoided as much as possible." This means that patent examiners should strive to provide a comprehensive examination of each claim, addressing all valid grounds for rejection in a single office action, rather than addressing issues one at a time across multiple office actions.

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Question 21

What is objective evidence of nonobviousness in patent law?

Accepted Answer

Objective evidence of nonobviousness refers to specific types of evidence that can be presented to support the patentability of an invention under 35 U.S.C. 103. According to MPEP 716.01(a), this evidence includes:

Criticality or unexpected results
Commercial success
Long-felt but unsolved needs
Failure of others
Skepticism of experts

The MPEP states: "Affidavits or declarations, when timely presented, containing evidence of criticality or unexpected results, commercial success, long-felt but unsolved needs, failure of others, skepticism of experts, etc., must be considered by the examiner in determining the issue of obviousness of claims for patentability under 35 U.S.C. 103." This evidence is crucial in demonstrating that an invention is not obvious and therefore potentially patentable.

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Question 22

What is diligence in patent law?

Accepted Answer

In patent law, diligence refers to the continuous effort an inventor makes to reduce their invention to practice after conception. As stated in the MPEP, In patent law, an inventor is either diligent at a given time or he is not diligent; there are no degrees of diligence. This means that diligence is a binary concept - an inventor is either diligent or not, without intermediate levels.

The MPEP also notes that An applicant may be diligent within the meaning of the patent law when he or she is doing nothing, if his or her lack of activity is excused. However, it's crucial to provide an explanation for any periods of inactivity, as the USPTO or courts will not speculate on possible explanations for delay or inactivity.

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Question 23

What is derivation in the context of pre-AIA patent law?

Accepted Answer

In the context of pre-AIA patent law, derivation refers to a situation where the subject matter in a patent, application publication, or other publication is derived from the inventor's or at least one joint inventor's own invention. MPEP 715.01(c) explains:

When the unclaimed subject matter of a patent, application publication, or other publication is the inventor's or at least one joint inventor's own invention, a rejection, which is not a statutory bar, on that patent or publication may be removed by submission of evidence establishing the fact that the patentee, applicant of the published application, or author derived their knowledge of the relevant subject matter from the inventor or at least one joint inventor.

To overcome a rejection based on derivation, the inventor or joint inventor must show:

The relevant subject matter was derived from their work.
They made the invention upon which the relevant disclosure is based.

It's important to note that this concept of derivation is distinct from 'derivation proceedings' in AIA (America Invents Act) law, which are discussed in MPEP § 2310 et seq.

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Question 24

What is an international design application?

Accepted Answer

An international design application is a specific type of patent application for industrial designs. The definition of an international design application is provided in 37 CFR 1.9(n).

Key points about international design applications:

They are filed under the Hague Agreement Concerning the International Registration of Industrial Designs
They allow applicants to seek protection for industrial designs in multiple countries through a single application
They are administered by the World Intellectual Property Organization (WIPO)
They can designate the United States for design patent protection

For more information on international design applications, visit the WIPO Hague System page.

For more information on Hague Agreement, visit: Hague Agreement.

For more information on patent law, visit: patent law.

Question 25

What is an international application in patent law?

Accepted Answer

An international application in patent law refers to a patent application filed under the Patent Cooperation Treaty (PCT). The definition of an international application is provided in 37 CFR 1.9(b).

Key points about international applications:

They are filed under the PCT framework
They can potentially lead to patent protection in multiple countries
They undergo an international search and optional international preliminary examination
They must enter the national phase in desired countries to pursue patent protection

For more detailed information on international applications, refer to the World Intellectual Property Organization (WIPO) PCT resources.

For more information on Patent Cooperation Treaty, visit: Patent Cooperation Treaty.

For more information on patent law, visit: patent law.

Question 26

What is a domestic representative for foreign patent assignees?

Accepted Answer

A domestic representative is a person residing within the United States who can be served process or notice of proceedings affecting a patent or rights thereunder on behalf of a foreign assignee. According to MPEP 302.04, An assignee of a patent or patent application who is not domiciled in the United States may, by written document signed by such assignee, designate a domestic representative. This allows foreign assignees to have a point of contact within the U.S. for legal matters related to their patent.

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Question 27

What is a divisional application in patent law?

Accepted Answer

A divisional application is a type of patent application that claims subject matter that is independent and distinct from that claimed in a prior application. It typically arises when an original application contains multiple inventions, and the Patent Office requires the applicant to restrict the claims to a single invention.

According to MPEP ¶ 2.01, a divisional application:

"appears to claim only subject matter directed to an invention that is independent and distinct from that claimed in the prior application, and names the inventor or at least one joint inventor named in the prior application."

To claim the benefit of the filing date of the prior application, applicants must comply with 35 U.S.C. 120, 37 CFR 1.78, and MPEP § 211 et seq.

For more information on Divisional application, visit: Divisional application.

For more information on patent law, visit: patent law.

For more information on USPTO, visit: USPTO.

Question 28

What is a derivation proceeding in patent law?

Accepted Answer

A derivation proceeding is a legal process used to determine the true inventor when there are competing claims to the same or substantially the same invention. According to MPEP 717.01(d), an applicant or patent owner may file a petition for a derivation proceeding when:

A rejection is based on a U.S. patent or patent application publication naming another inventor
The patent or application claims an invention that is the same or substantially the same as the applicant's or patent owner's claimed invention
An affidavit or declaration contends that an inventor named in the U.S. patent or application publication derived the claimed invention from the inventor or joint inventor named in the applicant's application or patent

The MPEP states: "See 37 CFR 1.130(c). Permitting two different applicants to each aver or declare that an inventor named in the other application derived the claimed invention without a derivation proceeding to resolve who the true inventor is could result in the Office issuing two patents containing patentably indistinct claims to two different parties."

This process helps ensure that only one patent is issued for inventions that are identical or not patentably distinct from each other when different inventive entities are involved.

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Question 29

What happens if a designated domestic representative cannot be found?

Accepted Answer

If the designated domestic representative cannot be found or if no person has been designated, 35 U.S.C. 293 provides a solution:

If the person designated cannot be found at the address given in the last designation, or if no person has been designated, the United States District Court for the Eastern District of Virginia shall have jurisdiction and summons shall be served by publication or otherwise as the court directs.

This means that if the domestic representative is unreachable or non-existent, the U.S. District Court for the Eastern District of Virginia will handle the case and determine how to serve the summons. This ensures that legal proceedings can continue even if there are issues with the domestic representative.

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Question 30

What does it mean when an MPEP section is marked as [Reserved]?

Accepted Answer

When an MPEP section is marked as [Reserved], it indicates that the section number exists but there is currently no content provided for that section. The MPEP states in section 212:

212 [Reserved] [R-]

Question 31

What are the requirements for claiming the benefit of a prior application's filing date?

Accepted Answer

To claim the benefit of a prior application's filing date, applicants must meet specific requirements. The MPEP ¶ 2.05 advises:

"Should applicant desire to claim the benefit of the filing date of the prior application, attention is directed to 35 U.S.C. 120, 37 CFR 1.78, and MPEP § 211 et seq."

Key requirements include:

The application must be filed before the patenting or abandonment of the prior application.
The application must contain a specific reference to the prior application.
The application must have at least one common inventor with the prior application.
The application must disclose the invention claimed in the manner provided by 35 U.S.C. 112(a).

For more information on patent law, visit: patent law.

Question 32

What are the main conditions for granting a patent?

russ.krajec@blueironip.com · Accepted Answer

The main conditions precedent to the grant of a patent are set forth in 35 U.S.C. 101, 102, 103, and 112. These sections outline the requirements for:

Patentable subject matter (§101)
Novelty (§102)
Non-obviousness (§103)
Specification and claims (§112)

An invention must meet all these conditions to be granted a patent.

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Question 33

What are the legal precedents relevant to the utility requirement in patent law?

russ.krajec@blueironip.com · Accepted Answer

The utility requirement in patent law is supported by various legal precedents. MPEP 716.08 directs readers to relevant sections for an overview of these precedents:

"See MPEP § 2107 - § 2107.03 generally for utility examination guidelines and an overview of legal precedent relevant to the utility requirement of 35 U.S.C. 101."

These sections of the MPEP provide a comprehensive review of court decisions that have shaped the interpretation and application of the utility requirement. Key cases often address issues such as the credibility of asserted utility, the specificity required in utility claims, and the substantial nature of the claimed utility. Understanding these precedents is crucial for patent practitioners and examiners in assessing and establishing utility in patent applications. To learn more:

To learn more:

MPEP 716.08
35 U.S.C. 101

Question 34

What are the grounds for rejecting claims in a patent application?

Accepted Answer

What are the grounds for rejecting claims in a patent application?

The grounds for rejecting claims in a patent application are specified in MPEP 706 and include:

The MPEP states: "All Office actions in the examination of applications for patent are to be complete as to all matters, except as to matters of form expressly noted or left undetermined." This means that examiners must consider and address all potential grounds for rejection in their office actions.

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Question 35

What are the consequences of fraudulently establishing small entity status?

Accepted Answer

Fraudulently establishing small entity status or paying fees as a small entity is considered a serious offense. According to 37 CFR 1.27(h): 'Any attempt to fraudulently establish status as a small entity or pay fees as a small entity will be considered as a fraud practiced or attempted on the Office.'

The consequences of such actions can be severe, potentially including:

Invalidation of the patent
Criminal charges for fraud
Disciplinary action against registered patent practitioners

It's crucial to ensure that all claims to small entity status are truthful and accurate. Do not rely on oral advice from USPTO employees regarding entitlement to small entity status.

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Question 36

What are public use proceedings in patent law?

Accepted Answer

Public use proceedings were a process in patent law that allowed third parties to challenge a patent application based on alleged public use or sale of the invention before the filing date. However, as of September 16, 2012, this process has been discontinued.

According to the MPEP, Effective September 16, 2012, former 37 CFR. 1.292 authorizing petitions seeking institution of public use proceedings was removed from title 37. This change reflects a significant shift in patent examination procedures.

For historical information about public use proceedings, the MPEP directs readers to consult an older version: For information necessary regarding the former process, the August 2012 revision of the MPEP ( www.uspto.gov/web/offices/pac/mpep/old/mpep_E8R9.htm ) may be consulted.

To learn more:

public use proceedings
patent law
USPTO
patent examination
37 CFR 1.292

To learn more:

37 CFR 1.292

Question 37

What are expected beneficial results in patent law?

Accepted Answer

Expected beneficial results are considered evidence of obviousness in patent law. The MPEP clearly states:

"Expected beneficial results are evidence of obviousness of a claimed invention, just as unexpected results are evidence of unobviousness thereof." (MPEP 716.02(c))

This means that if the beneficial results of an invention would have been expected based on the prior art, they can be used to support an obviousness rejection. Inventors should be aware that demonstrating expected benefits may not help overcome an obviousness rejection.

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Question 38

What are Abstracts, Abbreviatures, and Defensive Publications in patent law?

Accepted Answer

Abstracts, Abbreviatures, and Defensive Publications are historical forms of patent-related publications that were used to disclose inventions without pursuing a full patent:

Abstracts: Summaries of abandoned applications, published from 1949 to 1953.
Abbreviatures: Specific portions of abandoned applications, published from 1964 to 1965.
Defensive Publications: Abstracts of pending applications where the applicant waived rights to an enforceable patent, available from 1968 to 1985.

As stated in the MPEP, A defensive publication is not a patent or an application publication under 35 U.S.C. 122(b); it is a publication. Therefore, it is prior art only as of its publication date.

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Question 39

Is designating a domestic representative mandatory for foreign patent assignees?

Accepted Answer

While designating a domestic representative is not mandatory, it is highly recommended for foreign patent assignees. According to MPEP 302.04, An assignee of a patent or patent application who is not domiciled in the United States may, by written document signed by such assignee, designate a domestic representative. The use of ‘may’ indicates that this is optional. However, having a domestic representative can significantly simplify legal proceedings and communications with the USPTO for foreign assignees.

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Question 40

How should patent examiners approach claim rejections?

Accepted Answer

According to MPEP 707.07(g), patent examiners should approach claim rejections comprehensively. The MPEP states, "The examiner ordinarily should reject each claim on all valid grounds available, avoiding, however, undue multiplication of references." This means that examiners should:

Address all valid grounds for rejection in a single office action
Apply rejections for issues such as lack of proper disclosure, lack of enablement, and indefiniteness where appropriate
Provide full development of reasons for non-prior art rejections, rather than mere conclusions
Avoid excessive citation of references while still covering all valid grounds

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Question 41

How should examiners handle perpetual motion applications?

Accepted Answer

According to MPEP 707.07(g), patent applications directed to perpetual motion require special handling. The MPEP states:

"Where disclosure is directed to perpetual motion... the best prior art readily available should be cited and its pertinence pointed out without specifically applying it to the claims."

This means that for perpetual motion applications, examiners should:

Cite the best available prior art
Explain the relevance of the cited art
Avoid directly applying the art to the claims

This approach allows examiners to address the scientific impossibility of perpetual motion while still providing relevant information to the applicant.

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Question 42

How is an international application defined in patent law?

Accepted Answer

An international application is defined in 37 CFR 1.9(b). While the specific definition is not provided in the given MPEP excerpt, it generally refers to a patent application filed under the Patent Cooperation Treaty (PCT). International applications allow inventors to seek patent protection in multiple countries through a single filing process.

For more detailed information on international applications, you can refer to the full text of 37 CFR 1.9(b) and related sections of the MPEP.

For more information on Patent Cooperation Treaty, visit: Patent Cooperation Treaty.

For more information on patent law, visit: patent law.

Question 43

How does the USPTO view opinion testimony in patent interference cases?

Accepted Answer

The USPTO's view on opinion testimony in patent interference cases has evolved over time. The MPEP 716.09 references a significant case that reexamined this issue:

Glaser v. Strickland, 220 USPQ 446 (Bd. Pat. Int. 1983) which reexamines the rationale on which In re Oppenauer was based in light of the Federal Rules of Evidence.

The Board in this case provided the following guidance:

Opinion testimony which merely purports to state that a claim or count, is 'disclosed' in an application involved in an interference . . . should not be given any weight. Opinion testimony which purports to state that a particular feature or limitation of a claim or count is disclosed in an application involved in an interference and which explains the underlying factual basis for the opinion may be helpful and can be admitted. The weight to which the latter testimony may be entitled must be evaluated strictly on a case-by-case basis.

This means that while blanket statements about disclosure are not given weight, specific and well-supported opinions about particular features or limitations can be considered. However, the weight given to such testimony is determined on a case-by-case basis.

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Question 44

How does the USPTO handle extension of time requests in reexamination proceedings?

Accepted Answer

The USPTO handles extension of time requests in reexamination proceedings differently from regular patent applications. According to MPEP 710.02(e):

'Extensions of time in reexamination proceedings are governed by 37 CFR 1.550(c).'

This means that in reexamination cases:

Extensions may be available, but they are not granted automatically.
The requester must show sufficient cause for the extension.
The USPTO Director must approve the extension request.

It's important to note that the rules for extensions in reexamination proceedings are more stringent than those for regular patent applications, reflecting the need for expedited processing in these cases.

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Question 45

How does the MPEP define 'unexpected results' in the context of patent applications?

Accepted Answer

The Manual of Patent Examining Procedure (MPEP) provides guidance on what constitutes 'unexpected results' in the context of patent applications. According to MPEP 716.02(a), unexpected results can be demonstrated in several ways:

Greater than expected results: A greater than expected result is an evidentiary factor pertinent to the legal conclusion of obviousness ... of the claims at issue.
Superiority in a shared property: Evidence that a compound is unexpectedly superior in one of a spectrum of common properties ... can be enough to rebut a prima facie case of obviousness.
Presence of an unexpected property: Presence of a property not possessed by the prior art is evidence of nonobviousness.
Absence of an expected property: Absence of property which a claimed invention would have been expected to possess based on the teachings of the prior art is evidence of unobviousness.

It's important to note that for results to be considered 'unexpected,' they must be:

Truly surprising or unforeseen based on the prior art
Significant and practically advantageous
Commensurate in scope with the claimed invention

The MPEP emphasizes that applicants must show that the results were greater than those which would have been expected from the prior art to an unobvious extent, and that the results are of a significant, practical advantage.

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Question 46

How does the failure of others relate to long-felt need in patent law?

Accepted Answer

The failure of others is closely related to long-felt need in patent law, as it helps strengthen the case for non-obviousness. According to MPEP 716.04:

"Evidence of long-felt need and the failure of others to meet that need is appropriate for consideration in determining obviousness."

This relationship is significant because:

It demonstrates that the problem was recognized and attempts were made to solve it
It shows that despite efforts by skilled individuals, the solution was not obvious
It highlights the inventor's success where others have failed

When presenting evidence of long-felt need, including information about the failure of others can significantly enhance the argument for patentability.

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Question 47

How does the 'Detailed Description' section relate to the enablement requirement in patent law?

Accepted Answer

The 'Detailed Description' section of a patent application is closely tied to the enablement requirement, which is a fundamental principle in patent law. According to MPEP 608.01(g):

"This detailed description... must be in such particularity as to enable any person skilled in the pertinent art or science to make and use the invention without involving extensive experimentation"

This statement directly addresses the enablement requirement, which demands that:

The description must be detailed enough for a person skilled in the relevant field to make and use the invention.
It should not require 'extensive experimentation' to implement the invention.
The level of detail should be commensurate with the complexity of the technology.

The enablement requirement, codified in 35 U.S.C. § 112(a), ensures that the patent disclosure is sufficient to justify the grant of exclusive rights. A detailed description that fails to meet the enablement requirement can result in rejection of the patent application or invalidation of an issued patent.

For more information on enablement, refer to MPEP § 2164, which provides comprehensive guidance on this crucial aspect of patent law.

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Question 48

How does a divisional application differ from a provisional application?

Accepted Answer

Divisional applications and provisional applications are distinct types of patent applications with different purposes and characteristics:

Divisional Application: Claims subject matter from a prior non-provisional application that is independent and distinct from the original claims.
Provisional Application: A temporary application that establishes a priority date but does not mature into an issued patent.

The MPEP explicitly states in MPEP ¶ 2.01:

"An application claiming the benefit of a provisional application under 35 U.S.C. 119(e) should not be called a 'divisional' of the prior application."

This distinction is important because divisional applications claim the benefit under 35 U.S.C. 120, while provisional applications are claimed under 35 U.S.C. 119(e).

For more information on Divisional application, visit: Divisional application.

For more information on patent law, visit: patent law.

For more information on provisional application, visit: provisional application.

For more information on USPTO, visit: USPTO.

Question 49

How does 'long-felt need' relate to non-obviousness in patent law?

Accepted Answer

'Long-felt need' is an important factor in establishing non-obviousness of an invention in patent law. According to MPEP 716.04:

'Long-felt need is analyzed as of the date the problem is identified and articulated, and there is evidence of efforts to solve that problem, not as of the date of the most recent alleged improvement.'

The relationship between long-felt need and non-obviousness is based on the premise that if a need has existed for a long time without being solved, it suggests that the solution was not obvious to those skilled in the art. To effectively use long-felt need as evidence of non-obviousness:

The need must have been a persistent one that was recognized by those in the field.
The need must not have been satisfied by another before the invention under consideration.
The invention must actually satisfy the long-felt need.

Demonstrating these factors can help overcome obviousness rejections by showing that the invention was not an obvious solution to those skilled in the art.

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Question 50

How do you claim the benefit of a prior application in a continuation?

Accepted Answer

Claiming the benefit of a prior application in a continuation is a crucial step that must be done correctly. The MPEP 201.07 provides specific guidance:

If the later-filed application is a nonprovisional application, the reference required by this paragraph must be included in an application data sheet (§1.76(b)(5)). The reference also must identify the relationship of the applications, namely, whether the later-filed application is a continuation, divisional, or continuation-in-part of the prior-filed nonprovisional application, international application, or international design application.

To properly claim the benefit:

Failure to properly claim benefit can result in loss of the earlier filing date, so it's crucial to follow these steps carefully.

For more information on continuation application, visit: continuation application.

For more information on patent law, visit: patent law.

Question 51

How can an applicant claim benefit of an international design application?

Accepted Answer

To claim benefit of an international design application designating the United States, the following requirements must be met:

The claim must be made in a nonprovisional application, international application, or international design application filed on or after May 13, 2015
The international design application must be entitled to a filing date in accordance with 37 CFR 1.1023
The claim must meet the conditions and requirements of 35 U.S.C. 120

MPEP 211.01(d) states: Pursuant to 35 U.S.C. 386(c), in accordance with the conditions and requirements of 35 U.S.C. 120, a nonprovisional application is entitled to the benefit of a prior international design application designating the United States.

It's important to note that this benefit can only be claimed in applications or patents filed on or after May 13, 2015, as specified in 37 CFR 1.78(j).

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Question 52

How are proprietary materials handled in reexamination proceedings?

Accepted Answer

Proprietary materials submitted in reexamination proceedings are handled with care to protect sensitive information. According to MPEP § 724.04(c):

"Any materials, i.e., information, properly submitted under MPEP § 724.02 in a reexamination proceeding will be sealed from public view. The submitted information will be maintained separate from the reexamination file and will not be publicly available until a determination has been made as to whether or not the information is material to patentability."

This means that proprietary materials are initially kept confidential and separate from the public reexamination file. A determination is made regarding their materiality to patentability before any potential public disclosure.

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Question 53

Can the inventorship in a continuation or continuation-in-part application differ from the parent application?

Accepted Answer

Yes, the inventorship in a continuation or continuation-in-part (CIP) application can differ from the parent application, but there are specific requirements:

1. For continuation applications: The inventorship must include at least one inventor named in the prior-filed application.

2. For CIP applications: The inventorship can change more significantly due to the addition of new matter.

The MPEP states for continuation applications: "The inventorship in the continuation application must include at least one inventor named in the prior-filed application."

For CIP applications, the MPEP notes: "A continuation-in-part application that has a sole inventor may also derive from an earlier application that has joint inventors and discloses only a portion of the subject matter of the later application, subject to the conditions set forth in 35 U.S.C. 120 and 37 CFR 1.78. Subject to the same conditions, a continuation-in-part application that has joint inventors may derive from an earlier application that has a sole inventor."

Any changes in inventorship must be properly documented and may require a request under 37 CFR 1.48.

Question 54

Can the benefit of a provisional application be restored after the 12-month deadline?

Accepted Answer

Yes, the benefit of a provisional application can be restored even after the 12-month deadline has passed, under certain conditions. The MPEP explains:

"If a nonprovisional application or an international application designating the United States has a filing date which is after the expiration of the twelve-month period but within two months from the expiration of the period, the benefit of the provisional application may be restored under PCT Rule 26bis.3 for an international application, or upon petition under 37 CFR 1.78(b), if the delay in filing the nonprovisional application or the international application was unintentional."

To restore the benefit, a petition under 37 CFR 1.78(b) must be filed, which requires:

A reference to the provisional application
The petition fee
A statement that the delay was unintentional

The petition must be filed in the subsequent application or, in certain cases, in the earliest nonprovisional application claiming benefit to the international application.

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Question 55

Can design patent applications claim the benefit of a provisional application?

Accepted Answer

No, design patent applications cannot directly claim the benefit of a provisional application. The MPEP clearly states:

"Design applications may not claim the benefit of a provisional application under 35 U.S.C. 119(e)."

This restriction is based on 35 U.S.C. 172. However, there is a potential indirect way to claim some benefit:

If a design patent application claims benefit under 35 U.S.C. 120 to an intermediate nonprovisional utility patent application that directly claims the benefit of a provisional application, the design application cannot claim the benefit of the filing date of the provisional application.

This means that while a design application can't directly benefit from a provisional application's filing date, it may indirectly benefit from the disclosure in a nonprovisional utility application that claims priority to a provisional application.

To learn more:

Question 56

Can design applications claim benefit of provisional applications?

Accepted Answer

No, design applications cannot claim the benefit of provisional applications under 35 U.S.C. 119(e).

MPEP 211.01(a) explicitly states: Design applications may not claim the benefit of a provisional application under 35 U.S.C. 119(e).

However, it's important to note that while a design application cannot directly claim benefit of a provisional application, it may be possible to indirectly claim benefit through an intermediate utility application. The MPEP clarifies: Thus, where a design patent application claims benefit under 35 U.S.C. 120 to an intermediate nonprovisional utility patent application that directly claims the benefit of a provisional application, the design application cannot claim the benefit of the filing date of the provisional application.

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Question 57

Can a provisional application be called a 'continuation'?

Accepted Answer

No, a provisional application should not be referred to as a 'continuation'. The MPEP clearly states:

"An application claiming the benefit of a provisional application under 35 U.S.C. 119(e) should not be called a 'continuation' of the provisional application."

This is because provisional applications serve a different purpose than continuation applications. Provisional applications are temporary placeholders that establish a priority date but do not mature into issued patents. Continuations, on the other hand, are full patent applications that build upon previously filed non-provisional applications.

For more information on 35 U.S.C. 119(e), visit: 35 U.S.C. 119(e).

For more information on patent law, visit: patent law.

For more information on provisional application, visit: provisional application.

Question 58

Can a divisional application claim the benefit of the filing date of the prior application?

Accepted Answer

Yes, a divisional application can claim the benefit of the filing date of the prior application. The MPEP ¶ 2.01 states:

Should applicant desire to claim the benefit of the filing date of the prior application, attention is directed to 35 U.S.C. 120, 37 CFR 1.78, and MPEP § 211 et seq.

To claim this benefit, the applicant must meet the requirements set forth in 35 U.S.C. 120 and 37 CFR 1.78, which include making a proper benefit claim and ensuring the divisional application is filed before the patenting or abandonment of the prior application.

For more information on Divisional application, visit: Divisional application.

For more information on patent law, visit: patent law.

Question 59

Can a divisional application claim priority to its parent application?

Accepted Answer

Yes, a divisional application can claim priority to its parent application. This is one of the key benefits of filing a divisional application. According to MPEP 201.06:

'A divisional application is entitled to the benefit of the filing date of the prior application.'

This means that the divisional application:

Retains the priority date of the parent application for the subject matter disclosed in the parent
Can claim the benefit under 35 U.S.C. 120 or 365(c)
Must include a specific reference to the parent application in its application data sheet (ADS)

It's important to note that the divisional application must be filed while the parent application is still pending to claim this benefit.

For more information on 35 U.S.C. 120, visit: 35 U.S.C. 120.

For more information on Divisional application, visit: Divisional application.

For more information on patent law, visit: patent law.

Question 60

Can a design patent application be filed as a continuation or continuation-in-part?

Accepted Answer

Yes, design patent applications can be filed as continuations or continuations-in-part (CIPs), but with some specific considerations:

1. Continuations: A design application can be a continuation of a prior design application.

2. Continuations-in-part: A design application can be a CIP of a prior design application if it adds new matter.

3. Relationship to Utility Applications: A design application can also be a continuation or CIP of a utility application, provided the drawings in the utility application sufficiently disclose the claimed design.

The MPEP states: "A design application may be considered to be a divisional of a utility application (but not of a provisional application), and is entitled to the filing date thereof if the drawings of the earlier filed utility application show the same article as that in the design application sufficiently to comply with 35 U.S.C. 112(a). However, such a divisional design application may only be filed under the procedure set forth in 37 CFR 1.53(b), and not under 37 CFR 1.53(d)."

It's important to note that while not explicitly stated for continuations and CIPs, the same principle applies - the earlier application must sufficiently disclose the claimed design.

Question 61

Can a continuation application include new matter?

Accepted Answer

No, a continuation application cannot include new matter. As stated in MPEP 201.07:

The disclosure presented in the continuation must not include any subject matter which would constitute new matter if submitted as an amendment to the parent application.

This means that the continuation application must be based entirely on the disclosure of the prior-filed application. Any new subject matter would need to be filed as a continuation-in-part (CIP) application instead of a standard continuation application.

For more information on continuation application, visit: continuation application.

For more information on new matter, visit: new matter.

For more information on patent law, visit: patent law.

Question 62

Are there exceptions to comprehensive patent examination?

Accepted Answer

Yes, there are exceptions to comprehensive patent examination. MPEP 707.07(g) outlines specific situations where limiting examination to a particular issue may be appropriate:

When an application is too informal for a complete action on the merits (See MPEP § 702.01)
When there is an undue multiplicity of claims and no successful telephone request for election of a limited number of claims (See MPEP § 2173.05(n))
When there is a misjoinder of inventions and no successful telephone request for election (See MPEP §§ 803, 810, and 812.01)
When the disclosure is directed to perpetual motion

In these cases, examiners may focus on specific issues rather than providing a comprehensive examination.

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Question 63

Are substitute specifications allowed in reissue applications or reexamination proceedings?

Accepted Answer

No, substitute specifications are not permitted in reissue applications or reexamination proceedings. This is explicitly stated in 37 CFR 1.125(d):

A substitute specification under this section is not permitted in a reissue application or in a reexamination proceeding.

This restriction is important to maintain the integrity of the original patent document in these special proceedings. Applicants and practitioners should be aware of this limitation when considering how to make amendments or changes to the specification in reissue applications or reexamination proceedings.

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Here’s the complete FAQ:

MPEP 101-General (1)

What is the legal status of the Manual of Patent Examining Procedure (MPEP)?

MPEP 200 - Types and Status of Application; Benefit and Priority (22)

Why are amendments to refer to CPAs as continuation or divisional applications not allowed?

Which U.S. Code sections are relevant to claiming benefit of an earlier filing date?

What is the significance of claiming benefit to a prior application in a divisional?

What is the significance of a national application being made under 35 U.S.C. 111?

What is the significance of a national application being made under 35 U.S.C. 111?

What is the purpose of a divisional application in patent law?

What is the purpose of a divisional application in patent law?

What is the legal basis for denying amendments to CPA specifications?

What is the difference between a continuation application and a provisional application?

What is an international design application?

What is an international application in patent law?

What is a divisional application in patent law?

What are the requirements for claiming the benefit of a prior application’s filing date?

How is an international application defined in patent law?

How does a divisional application differ from a provisional application?

How do you claim the benefit of a prior application in a continuation?

How can an applicant claim benefit of an international design application?

Can the benefit of a provisional application be restored after the 12-month deadline?

Can design patent applications claim the benefit of a provisional application?

Can design applications claim benefit of provisional applications?

Can a provisional application be called a ‘continuation’?

Can a divisional application claim the benefit of the filing date of the prior application?

Can a divisional application claim priority to its parent application?

Can a continuation application include new matter?

MPEP 200 - Types and Status of Application; Benefit and Priority Claims (4)

What is the effect of filing a continuation or continuation-in-part application on the parent application?

What does it mean when an MPEP section is marked as [Reserved]?

Can the inventorship in a continuation or continuation-in-part application differ from the parent application?

Can a design patent application be filed as a continuation or continuation-in-part?

MPEP 201 - Types of Applications (20)

Why are amendments to refer to CPAs as continuation or divisional applications not allowed?

What is the significance of claiming benefit to a prior application in a divisional?

What is the significance of a national application being made under 35 U.S.C. 111?

What is the significance of a national application being made under 35 U.S.C. 111?

What is the purpose of a divisional application in patent law?

What is the purpose of a divisional application in patent law?

What is the legal basis for denying amendments to CPA specifications?

What is the effect of filing a continuation or continuation-in-part application on the parent application?

What is the difference between a continuation application and a provisional application?

What is an international design application?

What is an international application in patent law?

What is a divisional application in patent law?

What are the requirements for claiming the benefit of a prior application’s filing date?

How is an international application defined in patent law?

How does a divisional application differ from a provisional application?

How do you claim the benefit of a prior application in a continuation?

Can the inventorship in a continuation or continuation-in-part application differ from the parent application?

Can a provisional application be called a ‘continuation’?

Can a divisional application claim the benefit of the filing date of the prior application?

Can a divisional application claim priority to its parent application?

Can a design patent application be filed as a continuation or continuation-in-part?

Can a continuation application include new matter?

MPEP 211 - Claiming the Benefit of an Earlier Filing Date Under 35 U.S.C. 120 and 119(e) (1)

Which U.S. Code sections are relevant to claiming benefit of an earlier filing date?

MPEP 212 - [Reserved] (1)

What does it mean when an MPEP section is marked as [Reserved]?

MPEP 300 - Ownership and Assignment (5)

What is the legal basis for the USPTO’s English translation requirement for assignments?

What is the legal basis for correcting typographical errors in recorded assignment documents?

What is a domestic representative for foreign patent assignees?

What happens if a designated domestic representative cannot be found?

Is designating a domestic representative mandatory for foreign patent assignees?

MPEP 500 - Receipt and Handling of Mail and Papers (1)

What are the consequences of fraudulently establishing small entity status?

Patent Law (35)

Why are amendments to refer to CPAs as continuation or divisional applications not allowed?

Which U.S. Code sections are relevant to claiming benefit of an earlier filing date?

What is the significance of claiming benefit to a prior application in a divisional?

What is the significance of a national application being made under 35 U.S.C. 111?

What is the significance of a national application being made under 35 U.S.C. 111?

What is the purpose of a divisional application in patent law?

What is the purpose of a divisional application in patent law?

What is the legal status of the Manual of Patent Examining Procedure (MPEP)?

What is the legal basis for the USPTO’s English translation requirement for assignments?

What is the legal basis for denying amendments to CPA specifications?

What is the legal basis for correcting typographical errors in recorded assignment documents?