Question 1

How does joint ownership work for patents and patent applications?

Accepted Answer

Joint ownership in patents and patent applications occurs when two or more parties share ownership rights. According to MPEP 301:

"Joint inventors are treated as joint owners of the invention unless there is an assignment."

Key aspects of joint ownership include:

Each joint owner has the right to make, use, sell, and license the invention without consent from other owners.
Profits do not need to be shared unless there's a specific agreement.
All joint owners must agree to sell or assign the entire patent to a third party.
In infringement suits, all joint owners must be joined as plaintiffs.

It's important for joint owners to have clear agreements in place to avoid potential conflicts and ensure proper management of the patent rights.

For more information on joint inventors, visit: joint inventors.

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Question 2

What happens if a patent assignment is not recorded with the USPTO?

Accepted Answer

What happens if a patent assignment is not recorded with the USPTO?

Failing to record a patent assignment with the USPTO can have significant consequences:

Lack of Constructive Notice: Third parties may not be aware of the ownership transfer.
Potential Legal Issues: It may affect the assignee's ability to enforce the patent or recover damages in infringement cases.
Validity of Subsequent Transfers: As stated in MPEP 302, 'An assignment recorded in the Office is regarded as valid, for purposes of recording, unless overcome by a showing that such assignment was fraudulently procured or is otherwise invalid.'

While recording is not mandatory for the assignment to be valid between the parties involved, it is highly recommended to protect the assignee's rights and provide public notice of the ownership change.

For more information on USPTO, visit: USPTO.

Question 3

How can I correct an error in a recorded assignment document at the USPTO?

Accepted Answer

To correct an error in a recorded assignment document at the USPTO, you have two main options:

Cover sheet corrections: For errors in the cover sheet data only, you can submit a corrective document identifying the reel and frame number where the assignment is recorded and explaining the correction.
Errors in the assignment document: For errors in the actual assignment document, you need to record a corrective document. This can be either a new assignment or other document correcting the original assignment.

As stated in MPEP 323: "The 'Correction' box on the Recordation Form Cover Sheet should be checked to indicate that the new submission is to correct an assignment already recorded."

For more information on assignment correction, visit: assignment correction.

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Question 4

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.

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Question 5

What are the requirements for recording an assignment of a patent or patent application?

Accepted Answer

To record an assignment of a patent or patent application, the following requirements must be met:

The assignment must be in writing.
It must be signed by the assignor (the person or entity transferring ownership).
The document must identify the patent or application by number.
The assignment must be submitted to the USPTO along with the required fee.

According to MPEP 301: "An assignment relating to a patent must be submitted to the USPTO for recordation as an absolute requirement for enforcing the patent or application against third parties." This recordation provides constructive notice to the public of the assignment.

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

For more information on recordation, visit: recordation.

For more information on USPTO, visit: USPTO.

Question 6

What happens if an assignment document is not recorded at the USPTO?

Accepted Answer

What happens if an assignment document is not recorded at the USPTO?

If an assignment document is not recorded at the USPTO, it can have significant legal implications. According to MPEP 302:

'An assignment, grant, or conveyance of a patent or application shall be void as against any subsequent purchaser or mortgagee for valuable consideration, without notice, unless it is recorded in the Office within three months from its date or prior to the date of such subsequent purchase or mortgage.'

In other words, failing to record an assignment within the specified timeframe can render it invalid against subsequent purchasers or mortgagees who were unaware of the previous assignment. This highlights the importance of timely recording assignments to protect the rights of assignees.

For more information on assignment recording, visit: assignment recording.

For more information on legal implications, visit: legal implications.

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

For more information on USPTO, visit: USPTO.

Question 7

How do I update my address for patent correspondence with the USPTO?

Accepted Answer

How do I update my address for patent correspondence with the USPTO?

To update your address for patent correspondence with the USPTO:

Use the Change of Correspondence Address Form PTO/AIA/122 for applications filed on or after September 16, 2012.
Use Form PTO/SB/122 for applications filed before September 16, 2012.
Submit the form to the USPTO's Mail Stop Post Issue division.

The MPEP states: "A patent owner's change of address may be filed with the USPTO through the Office of Patent Legal Administration (OPLA)." (MPEP 2805)

Ensure you follow the proper procedures to maintain accurate communication channels with the USPTO regarding your patent.

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Question 8

How does the USPTO determine if a claim is too broad?

Accepted Answer

The United States Patent and Trademark Office (USPTO) uses several criteria to determine if a claim is too broad. According to MPEP 2173.04, the assessment depends on the specific issues with the claim:

Inventor's Regard: If the claim is broader than what the inventor regards as the invention, it may be rejected under 35 U.S.C. 112(b).
Lack of Support or Enablement: If the claim is not supported by the original description or lacks an enabling disclosure, it may be rejected under 35 U.S.C. 112(a).
Prior Art: If the claim is so broad that it reads on prior art, it may be rejected under 35 U.S.C. 102 or 103.

The MPEP states: "Undue breadth of the claim may be addressed under different statutory provisions, depending on the reasons for concluding that the claim is too broad."

Examiners will analyze the claim language, specification, and prior art to make these determinations. It's important to note that breadth alone does not make a claim too broad; the issue arises when the breadth leads to indefiniteness, lack of support, or overlap with prior art.

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Question 9

How should I address correspondence for ex parte reexamination requests?

Accepted Answer

For ex parte reexamination requests filed under 35 U.S.C. 302 and subsequent correspondence, the MPEP provides specific addressing instructions:

For mail sent via U.S. Postal Service:

Mail Stop "Ex Parte Reexam"
Attn: Central Reexamination Unit
Commissioner for Patents
P.O. Box 1450
Alexandria, VA 22313-1450

For hand-carried or delivery service submissions:

Customer Service Window
Randolph Building
401 Dulany Street
Alexandria, VA 22314

The MPEP states: "It is strongly recommended that the Mail Stop information be placed in a prominent position on the first page of each paper being filed utilizing a sufficiently large font size that will direct attention to it."

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Question 10

What is an interference in patent law?

Accepted Answer

An interference in patent law is a proceeding to determine which party has the right to a patent when two or more parties claim the same invention. The Manual of Patent Examining Procedure (MPEP) Chapter 2300 covers interference and derivation proceedings.

According to MPEP 2304, "The suggestion for an interference may come from an applicant or from an examiner." This process is crucial in determining priority of invention when multiple parties claim the same or similar inventions.

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Question 11

What is the timeline for submitting an IDS in an international design application?

Accepted Answer

The timeline for submitting an Information Disclosure Statement (IDS) in an international design application designating the United States is outlined in MPEP 2920.05(f):

At filing: An applicant may submit an IDS using Annex III to the official application form (DM/1 form) when filing the international design application.
Preferred timing: "The Office would prefer to receive the IDS from the applicant after publication of the international registration."
Three-month window: According to 37 CFR 1.97(b)(5), "the IDS will be considered by the Office if filed by the applicant within three months of the date of publication of the international registration under Hague Agreement Article 10(3)."
Later submissions: "The Office may also consider an IDS filed after this three month period as provided in 37 CFR 1.97."

It's important to note that while the USPTO will accept IDS submissions at various stages, submitting within the three-month window after publication ensures consideration without additional requirements. For IDS submissions outside this window, applicants should consult 37 CFR 1.97 for specific requirements and potential fees.

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Question 12

Can a provisional patent application claim priority to other applications?

Accepted Answer

No, a provisional patent application cannot claim priority to or benefit from other applications. The MPEP 201.04 clearly states:

"A provisional application is not entitled to the right of priority under 35 U.S.C. 119, 365(a), or 386(a) or § 1.55, or to the benefit of an earlier filing date under 35 U.S.C. 120, 121, 365(c), or 386(c) or § 1.78 of any other application."

This means that a provisional application stands alone and cannot claim the filing date of any earlier U.S. or foreign application. However, it's important to note that while a provisional application cannot claim priority, it can serve as a priority document for later-filed nonprovisional or foreign applications, provided they are filed within 12 months of the provisional application's filing date.

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Question 13

What does acting in a representative capacity mean for patent practitioners?

Accepted Answer

Acting in a representative capacity refers to a patent practitioner appearing in person or signing papers on behalf of a client before the United States Patent and Trademark Office (USPTO) in a patent case. According to 37 CFR 1.34, when a patent practitioner acts in this capacity, their personal appearance or signature constitutes a representation that they are authorized to represent the particular party on whose behalf they are acting.

The MPEP states: "When a patent practitioner acting in a representative capacity appears in person or signs a paper in practice before the United States Patent and Trademark Office in a patent case, his or her personal appearance or signature shall constitute a representation to the United States Patent and Trademark Office that under the provisions of this subchapter and the law, he or she is authorized to represent the particular party on whose behalf he or she acts."

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Question 14

What is the difference between an oath and a declaration in patent applications?

Accepted Answer

An oath is a sworn statement made before a person authorized to administer oaths, while a declaration is a written statement that can be used in lieu of an oath. According to MPEP 602, “A declaration may be submitted in lieu of an oath in any document filed in the Office provided the declaration complies with the requirements of 37 CFR 1.68.” Declarations are often preferred because they don’t require appearing before an official and are easier to process electronically.

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Question 15

What happens if I miss the maintenance fee payment and grace period?

Accepted Answer

If you miss both the maintenance fee payment and the 6-month grace period, your patent will expire. However, the USPTO may accept late payments under certain conditions. According to MPEP 2501:

"The Director may accept the payment of any maintenance fee required by subsection (b) after the 6-month grace period if the delay is shown to the satisfaction of the Director to have been unintentional."

To reinstate the patent, you must file a petition showing the delay was unintentional and pay the maintenance fee along with any required surcharges. If accepted, "the patent shall be considered as not having expired at the end of the grace period."

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Question 16

How long do I have to pay the basic filing fee for a provisional application?

Accepted Answer

The basic filing fee for a provisional application must be paid either:

At the time of filing, or
Within the time period set forth in 37 CFR 1.53(g)

If no correspondence address is provided, the applicant has two months from the filing date to pay the basic filing fee, submit the cover sheet, and pay the surcharge. The MPEP states:

If no correspondence address has been provided, applicant has two months from the filing date to file the basic filing fee, cover sheet, and to pay the surcharge as set forth in 37 CFR 1.16(g) in order to avoid abandonment of the provisional application. (MPEP 601.01(b))

It's important to note that timely payment of the filing fee is crucial if you intend to claim the benefit of the provisional application in a later-filed nonprovisional application.

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Question 17

How does the USPTO define 'new matter' in patent applications?

Accepted Answer

How does the USPTO define 'new matter' in patent applications?

The United States Patent and Trademark Office (USPTO) defines 'new matter' as any content added to a patent application after the initial filing date that was not present in the original specification, claims, or drawings. According to MPEP 608.04(a):

"Matter not present on the filing date of the application in the specification, claims, or drawings that is added after the application filing date is new matter."

This definition is strict and encompasses any additions or modifications that introduce information not explicitly or inherently supported by the original disclosure. New matter can include:

Additional text in the specification
New or modified claim elements
Changes to drawings or the addition of new figures
Incorporation of external references not properly incorporated on the filing date

It's important to note that new matter is prohibited under 35 U.S.C. 132(a), which states that "No amendment shall introduce new matter into the disclosure of the invention."

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Question 18

What is an Information Disclosure Statement (IDS) in patent applications?

Accepted Answer

An Information Disclosure Statement (IDS) is a mechanism by which patent applicants can comply with the duty of disclosure provided in 37 CFR 1.56. It allows applicants to submit information that is material to patentability to the U.S. Patent and Trademark Office (USPTO).

According to the MPEP, The provisions of 37 CFR 1.97 and 37 CFR 1.98 provide a mechanism by which patent applicants may comply with the duty of disclosure provided in 37 CFR 1.56 using an IDS. This means that an IDS is a formal way to disclose relevant prior art and other information to the patent examiner.

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Question 19

Can a foreign patent agent with limited recognition represent applicants in all USPTO matters?

Accepted Answer

Can a foreign patent agent with limited recognition represent applicants in all USPTO matters?

No, a foreign patent agent with limited recognition cannot represent applicants in all USPTO matters. The MPEP clearly states that A foreign patent agent granted limited recognition may not represent applicants or parties in trademark matters, ex parte or inter partes appeals to the Patent Trial and Appeal Board, petitions to the Director of the USPTO, disciplinary proceedings, or in any other matter before the Office. (MPEP 402.01) Their representation is strictly limited to the presentation and prosecution of patent applications before the USPTO.

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Question 20

Can a Canadian patent agent represent U.S. patent applicants before the USPTO?

Accepted Answer

Can a Canadian patent agent represent U.S. patent applicants before the USPTO?

Yes, a Canadian patent agent can represent U.S. patent applicants before the USPTO under certain conditions. According to MPEP 402.01:

'The Canadian Intellectual Property Office and the United States Patent and Trademark Office have agreed on a procedure to allow for the reciprocal recognition of patent agents and attorneys registered to practice before their respective Offices.'

This means that registered Canadian patent agents can apply for and be granted limited recognition to represent U.S. patent applicants before the USPTO. However, this recognition is subject to specific conditions and requirements set by the OED Director.

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Question 21

How can I obtain a foreign filing license?

Accepted Answer

There are several ways to obtain a foreign filing license:

File a US patent application, which is considered an implicit petition for a license. The filing receipt will indicate if a license is granted.
File an explicit petition for a license under 37 CFR 5.12(b) if no US application has been filed.
Wait 6 months after filing a US application, at which point a license is no longer required (unless a Secrecy Order has been imposed).

As stated in the MPEP: "There are two ways in which permission to file an application abroad may be obtained: either a petition for a foreign filing license may be granted (37 CFR 5.12) or an applicant may wait 6 months after filing an application in the USPTO (35 U.S.C. 184) at which time a license on that subject matter is no longer required as long as no Secrecy Order has been imposed."

For more information on foreign filing license, visit: foreign filing license.

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Question 22

Can a power of attorney be filed after the patent application is submitted to the USPTO?

Accepted Answer

Can a power of attorney be filed after the patent application is submitted to the USPTO?

Yes, a power of attorney can be filed after the patent application is submitted to the USPTO. The MPEP 601.02 states:

"A power of attorney may be filed in a provisional application, a nonprovisional application, a reexamination proceeding, or a supplemental examination proceeding."

This means that you can file a power of attorney at various stages of the patent process, including:

At the time of filing the application
After the application has been submitted
During prosecution of the application
Even after the patent has been granted (for reexamination or supplemental examination proceedings)

However, it's generally advisable to file the power of attorney as early as possible to ensure smooth communication with the USPTO throughout the application process. If you need to file a power of attorney after submission, use the appropriate USPTO form and follow the current filing procedures.

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Question 23

What are the timing requirements for submitting an Information Disclosure Statement (IDS)?

Accepted Answer

The timing requirements for submitting an IDS are:

Within 3 months of filing or before first Office action, whichever is later
Before final Office action, Notice of Allowance, or Quayle action
After final Office action but before issue fee payment
After issue fee payment but before patent grant

The specific requirements vary based on when the IDS is filed. For example, as stated in MPEP 609.04(b): "An information disclosure statement will be considered by the examiner if filed within any one of the following time periods: (A) for national applications (not including CPAs), within three months of the filing date of the national application or before the mailing date of a first Office action on the merits; (B) for international applications, within three months of the date of entry of the national stage as set forth in 37 CFR 1.491 or before the mailing date of a first Office action on the merits; (C) for RCEs and CPAs, before the mailing date of a first Office action on the merits; or (D) for international design applications, within three months of the date of publication of the international registration under Hague Agreement Article 10(3) or before first Office action on the merits, whichever is later."

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Question 24

What are the Information Disclosure Statement (IDS) requirements for international design applications?

Accepted Answer

Information Disclosure Statement (IDS) requirements for international design applications designating the United States are similar to those for domestic national applications:

The duty to disclose information material to patentability applies to individuals associated with the filing and prosecution of the application.
An IDS must adhere to the requirements set forth in 37 CFR 1.97, 1.98, and 1.33(b) for consideration by the examiner.
An IDS filed within three months of the publication date of the international registration will be considered by the Office under 37 CFR 1.97(b)(5).
IDSs filed after this period may be considered as provided in 37 CFR 1.97.

As stated in the MPEP: An international design application designating the United States has the effect of a U.S. patent application and thus is subject to 37 CFR 1.56.

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Question 25

What is the significance of a power of attorney in patent applications?

Accepted Answer

What is the significance of a power of attorney in patent applications?

A power of attorney is a crucial document in patent applications that authorizes an attorney or agent to act on behalf of the applicant or assignee. According to MPEP 402.04, "A power of attorney may be filed in an individual application, either original or reissue, and in any national stage application." This document allows the designated representative to make decisions, file documents, and communicate with the USPTO on behalf of the applicant. It's important to note that the power of attorney must be properly executed and filed to be effective.

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Question 26

How can a juristic entity give power of attorney in a patent application?

Accepted Answer

A juristic entity (e.g., corporations, universities, or other organizations) can give power of attorney in a patent application through an appropriate official. According to MPEP 402:

'Where the applicant is a juristic entity (e.g., organizational assignee), a power of attorney must be signed by a person authorized to act on behalf of the applicant.'

The process typically involves:

An official with signing authority (e.g., CEO, president, or authorized patent counsel) signs the power of attorney form.
The signed form is submitted to the USPTO along with the patent application or separately if done after filing.
If requested by the USPTO, documentation may need to be provided to establish the authority of the person signing on behalf of the juristic entity.

It's important to ensure that the person signing has the actual authority to bind the juristic entity in patent matters.

For more information on juristic entity, visit: juristic entity.

For more information on power of attorney, visit: power of attorney.

For more information on USPTO, visit: USPTO.

Question 27

How can I revoke a power of attorney in a patent application filed on or after September 16, 2012?

Accepted Answer

How can I revoke a power of attorney in a patent application filed on or after September 16, 2012?

To revoke a power of attorney in a patent application filed on or after September 16, 2012, you need to follow these steps:

Submit a new power of attorney form (PTO/AIA/82) or a revocation form (PTO/AIA/83).
The revocation must be signed by the applicant or patent owner.
If using form PTO/AIA/82, check the box indicating revocation of all previous powers of attorney.

According to MPEP 402.02(a): "A power of attorney may be revoked only by the applicant or patent owner. An assignee who is not the applicant may revoke a power of attorney only if the assignee becomes the applicant per 37 CFR 1.46(c)."

It's important to note that the revocation is not retroactive; it only takes effect when received by the USPTO.

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Question 28

How does the time period for replying to a Notice to File Missing Parts differ from other statutory periods?

Accepted Answer

The time period for replying to a Notice to File Missing Parts of an Application is treated differently from other statutory periods. The MPEP states: The 2-month time period for reply to A Notice to File Missing Parts of an Application is not identified on the Notice as a statutory period subject to 35 U.S.C. 133.

This means that:

The initial period for reply is 2 months
Extensions of time of up to 5 months are permitted under 37 CFR 1.136(a)
Additional time may be granted under 37 CFR 1.136(b) when appropriate

Unlike shortened statutory periods, which are limited to a maximum of 6 months from the Office action date, the period for replying to a Notice to File Missing Parts can potentially be extended beyond 6 months. This provides applicants with more flexibility in completing their applications.

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Question 29

What is an Information Disclosure Statement (IDS) in patent prosecution?

Accepted Answer

An Information Disclosure Statement (IDS) is a mechanism by which patent applicants can comply with the duty of disclosure provided in 37 CFR 1.56. It allows applicants to submit information that is material to patentability to the U.S. Patent and Trademark Office (USPTO).

According to the MPEP, The provisions of 37 CFR 1.97 and 37 CFR 1.98 provide a mechanism by which patent applicants may comply with the duty of disclosure provided in 37 CFR 1.56 using an IDS. This means that an IDS is a formal way to disclose relevant prior art and other information to the patent examiner.

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The IDS is a crucial part of fulfilling the duty of disclosure to the USPTO, ensuring that the patent examiner has all relevant information when considering the patentability of an invention.

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Question 30

What are the time limits for extensions under 37 CFR 1.136(a)?

Accepted Answer

According to 37 CFR 1.136(a), an applicant may extend the time period for reply up to five months after the time period set for reply, unless:

Prohibited by statute
Prohibited by one of the items listed in the rule
The applicant has been notified otherwise in an Office action

The MPEP states: 37 CFR 1.136(a) permits an applicant to file a petition for extension of time and a fee as set forth in 37 CFR 1.17(a) up to 5 months after the end of the time period set to take action. However, it's important to note that no extension can operate to extend the time beyond the 6 months statutory period.

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Question 31

Can the USPTO restart the period for reply if there's an error in an Office action?

Accepted Answer

Yes, the USPTO can restart the period for reply if there's an error in an Office action, under certain conditions. According to MPEP 710.02(b), Where the citation of a reference is incorrect or an Office action contains some other defect and this error is called to the attention of the Office within 1 month of the mail date of the action, the Office will restart the previously set period for reply to run from the date the error is corrected, if requested to do so by applicant. This provision ensures fairness in cases where USPTO errors might otherwise disadvantage applicants. For more details on this process, refer to MPEP § 710.06.

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Question 32

What are the requirements for Article 19 Amendments filed after July 1, 2009?

Accepted Answer

Article 19 Amendments filed after July 1, 2009 have specific requirements. According to MPEP 1893.01(a)(2), these amendments must include a complete claim set. This is in contrast to amendments filed before July 1, 2009, which did not have this requirement.

The MPEP states: "Article 19 amendments filed before July 1, 2009 were not required to include a complete claim set and the pages of the translation would not have been entered as replacement claim sheets where entry would have resulted in an inconsistency in the flow of the claims from the bottom of one page to the top of the following page."

For amendments filed after July 1, 2009, applicants should ensure they provide a complete claim set to avoid any issues with entry into the U.S. national stage application.

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Question 33

What happens if an applicant fails to respond to a restriction requirement?

Accepted Answer

If an applicant fails to respond to a restriction requirement, the following consequences may occur:

The application may be treated as abandoned.
A notice of abandonment may be sent to the applicant.
The applicant may need to file a petition to revive the application.

According to MPEP 818.01(a), "If no election is made, and the examiner cannot reach the applicant by telephone or the applicant does not respond to a telephone request for election, the examiner should consider the reply to be bona fide and fully responsive." However, if the restriction requirement was clear and complete, and the applicant failed to respond, the application may be treated as abandoned.

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Question 34

Can an applicant request an extension of time to respond to a restriction requirement?

Accepted Answer

Yes, an applicant can request an extension of time to respond to a restriction requirement. According to MPEP 818.01(a):

"A shortened statutory period will be set for reply to a written restriction requirement. Extensions of time may be requested under 37 CFR 1.136."

This means that:

The USPTO typically sets a shortened statutory period for responding to a restriction requirement.
Applicants can request extensions of time under 37 CFR 1.136.
Extensions may be granted for up to six months from the original due date.
Fees may apply for extension requests.

It's important to note that while extensions are available, timely responses are generally preferred to avoid potential delays in the examination process.

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Question 35

What is the importance of the title of invention in a patent application?

Accepted Answer

The title of invention plays a crucial role in a patent application as it should be specific to the invention as claimed. The Manual of Patent Examining Procedure (MPEP) § 1302.04(a) states:

"Where the title of the invention is not specific to the invention as claimed, see MPEP § 606.01."

This guidance emphasizes that the title should accurately reflect the claimed invention. A specific and clear title helps examiners, researchers, and other interested parties quickly understand the nature of the invention.

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Question 36

How does the USPTO handle earlier search results from foreign offices in PCT applications?

Accepted Answer

The United States Patent and Trademark Office (USPTO), when acting as the International Searching Authority (ISA/US), handles earlier search results from foreign offices in PCT applications as follows:

If the applicant has requested the ISA/US to consider earlier foreign search results.
If a copy of the earlier search results and an English translation (if necessary) are provided.
If copies of cited documents (except U.S. patents and U.S. patent application publications) are provided.

MPEP 1852 states:

"Where the applicant has requested the United States International Searching Authority (ISA/US) to take into account earlier search results from a foreign Office and where a copy of the earlier search results (and a translation into English where the search results are in a foreign language) and copies of the documents cited therein (other than copies of U.S. patents and U.S. patent application publications) have been provided, the examiner shall take into account such earlier search results."

If the required documents are not provided, the examiner has discretion on whether to consider the earlier foreign office search results. The examiner is not bound by the results of the earlier search but uses them as a starting point for the international search.

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Question 37

Can I request the return of my model, exhibit, or specimen from the USPTO?

Accepted Answer

Yes, you can request the return of your model, exhibit, or specimen from the USPTO. However, there are specific procedures and timeframes to follow. According to MPEP 608.03(a):

A request for return of the model, exhibit, or specimen should be made within the period set forth in MPEP § 608.03(a).

Here are the key points to remember:

Make the request before the application is allowed or within two months after the date of the Notice of Allowance.
Include a proper postage paid return address sticker with the request.
If the item is not claimed within the specified period, the USPTO may dispose of it at its discretion.

It's important to act promptly if you wish to have your items returned, as the USPTO is not obligated to store them indefinitely.

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Question 38

Can omitting information from an application be considered new matter?

Accepted Answer

Yes, in some cases, omitting information from a patent application can be considered new matter. This might seem counterintuitive, but the removal of certain information can change the scope or meaning of the invention in a way that wasn't supported by the original disclosure.

The MPEP provides an example: New matter includes not only the addition of wholly unsupported subject matter, but may also include [...] even the omission of a step from a method. (MPEP 608.04(a))

This concept is particularly important in the context of:

Changing the scope of the invention
Altering the nature of the invention
Removing essential features or steps

Applicants should be cautious when making any changes to their application, including deletions, to ensure they don't inadvertently introduce new matter by omission. If in doubt, it's advisable to consult with a patent attorney or agent.

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Question 39

What are the income limitations for qualifying as a micro entity?

Accepted Answer

What are the income limitations for qualifying as a micro entity?

To qualify as a micro entity based on income, an applicant's gross income in the previous calendar year must not exceed three times the median household income as reported by the Bureau of the Census. The MPEP states:

"The income limit is not described in terms of a specific dollar amount because median household income may change from year to year." (MPEP 509.04(a))

For the most current income threshold, applicants should check the USPTO's website or consult with a patent attorney. It's important to note that this limit applies to each applicant, inventor, and joint inventor who is named in the application.

To learn more:

Question 40

How do I set up a deposit account with the USPTO?

Accepted Answer

How do I set up a deposit account with the USPTO?

To set up a deposit account with the USPTO:

Visit the USPTO Deposit Accounts page
Download and complete the Deposit Account Application Form
Submit the form with an initial deposit (minimum $1,000)
Wait for account approval and receive your account number

According to MPEP 509: 'A deposit account may be established by submitting a completed Deposit Account Application Form with an initial deposit of at least $1,000.' This account can be used for future fee payments, offering convenience for frequent USPTO transactions.

To learn more:

Question 41

What information should be included in a request to delete a named inventor in a CPA?

Accepted Answer

When requesting to delete a named inventor in a Continued Prosecution Application (CPA) for a design patent, you should include specific information. According to MPEP ¶ 2.32, the request should contain:

A clear statement requesting the deletion of the inventor(s)
The name(s) of the inventor(s) to be deleted
The filing date of the CPA

The MPEP provides a template for acknowledging such requests:

Receipt is acknowledged of the statement requesting that [1] be deleted as a named inventor which was filed with the Continued Prosecution Application (CPA) on [2].

In this template, [1] represents the name(s) of the inventor(s) to be deleted, and [2] is the filing date of the CPA. Ensure your request clearly specifies these details to facilitate proper processing by the USPTO.

For more information on CPA, visit: CPA.

For more information on inventorship, visit: inventorship.

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

For more information on USPTO, visit: USPTO.

Question 42

Can a power of attorney be revoked in a patent application, and if so, how?

Accepted Answer

Yes, a power of attorney can be revoked in a patent application. The process for revocation is outlined in MPEP 402:

'The power of attorney may be revoked at any time. Pursuant to 37 CFR 1.36(a), an applicant may revoke a power of attorney by filing a new power of attorney that is not directed to the patent practitioner(s) of record.'

To revoke a power of attorney:

File a new power of attorney form (PTO/AIA/82) with the USPTO.
The new form should either name new representative(s) or indicate that the applicant wishes to prosecute the application pro se (without an attorney).
Ensure the form is signed by the applicant or, in the case of a juristic entity, by an authorized official.
Submit the form through the USPTO's Electronic Filing System (EFS-Web) or by mail.

It's important to note that merely filing a new power of attorney automatically revokes the previous one. There's no need for a separate revocation document unless you want to revoke without appointing a new representative.

For more information on power of attorney, visit: power of attorney.

For more information on pro se, visit: pro se.

For more information on revocation, visit: revocation.

For more information on USPTO, visit: USPTO.

Question 43

Do certified copies of patent applications include assignment information?

Accepted Answer

No, certified copies of patent applications as filed do not include an indication of assignment documents. According to the MPEP 303, "Certified copies of patent applications as filed do not include an indication of assignment documents." This means that the initial certified copy of a patent application does not contain information about any assignments that may have been recorded.

For more information on assignment documents, visit: assignment documents.

For more information on certified copies, visit: certified copies.

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

For more information on USPTO, visit: USPTO.

Question 44

How do I verify if someone is authorized to conduct business with the USPTO for a patent application filed after September 16, 2012?

Accepted Answer

To verify if someone is authorized to conduct business with the USPTO for a patent application filed after September 16, 2012, you can follow these steps:

Check if the person is listed as the applicant or an assignee
Verify if they are a registered patent practitioner
Look for a power of attorney or authorization of agent document
Confirm if they are named as an inventor in the application

The USPTO maintains specific rules about who can correspond regarding patent applications. As stated in MPEP 403.01(a):

For applications filed on or after September 16, 2012, ... the applicant's or patent owner's correspondence address ... is the correspondence address of the patent practitioner appointed in a power of attorney or authorization of agent, or if no practitioner is appointed, the correspondence address of the applicant or patent owner.

If you're unsure, it's best to contact the USPTO directly for clarification.

To learn more:

Question 45

What is the purpose of an interview summary in patent examination?

Accepted Answer

What is the purpose of an interview summary in patent examination?

An interview summary serves as an official record of the discussion between the examiner and the applicant or their representative during a patent examination interview. The MPEP states:

"A complete written statement as to the substance of any face-to-face, video conference, or telephone interview with regard to an application must be made of record in the application whether or not an agreement with the examiner was reached at the interview." (MPEP 713.04)

The purpose of this summary is to:

Document the discussion: Capture the main points, arguments, and any agreements reached during the interview.
Ensure transparency: Provide a clear record for both the USPTO and the applicant of what was discussed.
Facilitate examination: Help examiners and applicants refer back to the discussion points in subsequent communications.
Prevent misunderstandings: Clarify any potential misinterpretations of the interview content.

By maintaining accurate interview summaries, the patent examination process becomes more efficient and transparent for all parties involved.

To learn more:

Question 46

Who is eligible for the Transitional After-Final Practice?

Accepted Answer

The Transitional After-Final Practice applies to specific patent applications. According to MPEP 706.07(g):

Effective June 8, 1995, in any pending application having an actual or effective filing date of June 8, 1993 or earlier, applicant is entitled, under 37 CFR 1.129(a), to have a first submission after final rejection entered and considered on the merits, if the submission and the fee set forth in 37 CFR 1.17(r) are filed prior to the filing of an Appeal Brief under 37 CFR 41.37 and prior to abandonment.

It's important to note that this practice is not available for all applications. The MPEP specifies: The transitional after-final practice is only available to applications filed on or before June 8, 1995 and it is not available for reissue or design applications or reexamination proceedings.

To learn more:

Question 47

What happens to the finality of rejection after a submission under the Transitional After-Final Practice?

Accepted Answer

When a submission is made under the Transitional After-Final Practice and the appropriate fee is paid, the finality of the previous rejection is withdrawn. According to MPEP 706.07(g):

The finality of the final rejection is automatically withdrawn upon the timely filing of the submission and payment of the fee set forth in 37 CFR 1.17(r).

This means that the application returns to a non-final status, allowing for further examination and potentially additional amendments or arguments from the applicant.

To learn more:

Question 48

How does the Transitional After-Final Practice affect the treatment of Information Disclosure Statements (IDS)?

Accepted Answer

The Transitional After-Final Practice affects how Information Disclosure Statements (IDS) are treated. According to MPEP 706.07(g):

In view of the fee set forth in 37 CFR 1.17(r), any (IDS) previously refused consideration in the application because of applicant's failure to comply with 37 CFR 1.97(c) or (d) will be treated as though it has been filed within one of the time periods set forth in 37 CFR 1.97(b) and will be considered without the petition and petition fee required in 37 CFR 1.97(d), if it complies with the requirements of 37 CFR 1.98.

This means that previously unconsidered IDSs may now be considered without additional petitions or fees, provided they meet the requirements of 37 CFR 1.98.

To learn more:

Question 49

What can be included in a submission under the Transitional After-Final Practice?

russ.krajec@blueironip.com · Accepted Answer

A submission under the Transitional After-Final Practice can include various types of information and amendments. According to MPEP 706.07(g):

The submission under 37 CFR 1.129(a) may comprise, but is not limited to, an information disclosure statement (IDS), an amendment to the written description, claims or drawings, a new substantive argument and/or new evidence in support of patentability.

However, it's crucial to note that: No amendment considered as a result of payment of the fee set forth in 37 CFR 1.17(r) may introduce new matter into the disclosure of the application 35 U.S.C. 132.

To learn more:

Question 50

How many submissions are allowed under the Transitional After-Final Practice?

Accepted Answer

The Transitional After-Final Practice allows for up to two submissions after a final rejection. According to MPEP 706.07(g):

An applicant whose application is eligible for the transitional further limited examination procedure set forth in 37 CFR 1.129(a) is entitled to consideration of two after final submissions.

However, it's important to note: If such an applicant has filed two submissions under 37 CFR 1.129(a) and the application is again under a final rejection, applicant is not entitled to have any additional submissions considered under 37 CFR 1.129(a).

After exhausting these two submissions, any further submissions will be treated according to standard after-final practice under 37 CFR 1.116.

To learn more:

Question 51

How does the USPTO determine if a long-felt need existed before an invention?

Accepted Answer

How does the USPTO determine if a long-felt need existed before an invention?

The USPTO determines if a long-felt need existed before an invention by considering several factors:

Duration of the need: The need must have been a persistent one that was recognized and existed for a long time before the invention.
Efforts to solve: There should be evidence of substantial efforts by skilled artisans to solve the problem.
Failure of others: Documented unsuccessful attempts by others to solve the problem can support the existence of a long-felt need.
Recognition of the problem: The problem should have been recognized and acknowledged in the relevant field.

As stated in MPEP 716.04: Establishing long-felt need requires objective evidence that an art recognized problem existed in the art for a long period of time without solution. The USPTO examines the evidence provided by the applicant to determine if these criteria are met.

To learn more:

Question 52

What are the requirements for PPH participation in the USPTO?

russ.krajec@blueironip.com · Accepted Answer

To participate in the Patent Prosecution Highway (PPH) program at the USPTO, applicants must meet specific requirements. According to MPEP 708.02(c), these include:

Corresponding application: The U.S. application must have a corresponding application filed in a PPH partner office.
Patentable claims: The partner office must have determined that at least one claim is patentable.
Claim correspondence: All claims in the U.S. application must sufficiently correspond to the allowable claims in the partner office application.
Examination status: Substantive examination of the U.S. application must not have begun.
Required documents: Applicants must submit necessary documents, including copies of office actions from the partner office, claims determined to be patentable, and a claims correspondence table.

The USPTO provides detailed guidance on these requirements and the application process on their PPH website.

To learn more:

Question 53

Can the USPTO set a shorter reply period for patent office actions?

Accepted Answer

Yes, the USPTO can set a shorter reply period for patent office actions. According to 35 U.S.C. 133:

'...or within such shorter time, not less than thirty days, as fixed by the Director in such action, the application shall be regarded as abandoned by the parties thereto.'

This provision allows the USPTO to set a reply period shorter than six months, but not less than 30 days, for responding to office actions. The specific time frame will be indicated in the office action itself.

To learn more:

Question 54

Can arguments of patent attorneys replace evidence in patent examination?

Accepted Answer

Can arguments of patent attorneys replace evidence in patent examination?

No, the arguments of patent attorneys cannot replace actual evidence in patent examination. This principle is clearly stated in MPEP 716.01(c) II:

The arguments of counsel cannot take the place of evidence in the record. In re Schulze, 346 F.2d 600, 602, 145 USPQ 716, 718 (CCPA 1965).

This means that while attorneys can present arguments and interpretations of evidence, their statements alone are not considered evidence. The USPTO requires factual evidence to support patentability arguments. This can include:

Experimental data
Test results
Affidavits or declarations from experts
Documentation of unexpected results
Evidence of commercial success

Attorney arguments can be valuable in explaining the relevance of submitted evidence or interpreting prior art, but they cannot substitute for objective evidence. Examiners are instructed to rely on the actual evidence in the record when making patentability determinations, rather than unsupported assertions by attorneys.

To learn more:

Question 55

What are the consequences of failing to reply within the set period in a patent application?

Accepted Answer

What are the consequences of failing to reply within the set period in a patent application?

Failing to reply within the set period in a patent application can have serious consequences, potentially leading to the abandonment of the application. MPEP 710 states:

Failure to reply within the time period set in an Office action will result in abandonment of the application or termination of proceedings, see MPEP § 711.

The consequences of abandonment include:

Loss of the application's filing date
Potential loss of patent rights
Additional costs and procedures to revive the application, if possible

It's crucial to respond within the specified time frame or request an extension of time if needed to avoid these consequences.

To learn more:

Question 56

What is a deferral of examination and how does it differ from a suspension of action?

Accepted Answer

A deferral of examination is a specific type of suspension of action available for new applications. According to MPEP 709, "In new applications, applicants may request a deferral of examination under 37 CFR 1.103(d) for a period not extending beyond three years from the earliest filing date for which a benefit is claimed under 35 U.S.C. 119(a)-(d), (e), (f), 120, 121, 365, or 386." Unlike a standard suspension of action, a deferral of examination:

Must be requested before the Office issues an Office action or notice of allowance
Can last up to three years from the earliest priority date
Requires the application to be in condition for publication
Requires payment of the publication fee

This option allows applicants to delay the examination process for a more extended period than a typical suspension of action.

To learn more:

Question 57

How can I request an extension of time to reply to a USPTO Office action?

Accepted Answer

How can I request an extension of time to reply to a USPTO Office action?

To request an extension of time to reply to a USPTO Office action, you need to follow specific procedures. According to MPEP 704.13:

"Extensions of time may be granted only pursuant to petition under 37 CFR 1.136(a) or (b)."

Here's how to request an extension:

File a petition under 37 CFR 1.136(a) for a non-statutory extension of time
Submit the petition with the appropriate fee
File the petition before the original or previously extended deadline expires
For statutory extensions, file a petition under 37 CFR 1.136(b) with a showing of sufficient cause

Remember that extensions are not automatically granted and may incur additional fees. It's best to reply within the original time period whenever possible to avoid complications and extra costs.

To learn more:

Question 58

What is the status of abandoned applications as prior art?

Accepted Answer

Abandoned applications can serve as prior art under certain conditions:

If the abandoned application was previously published under 35 U.S.C. 122(b), it's considered prior art as of its publication date under pre-AIA 35 U.S.C. 102(a) and 102(b) and 35 U.S.C. 102(a)(1).
The MPEP states: "If an abandoned application was previously published under 35 U.S.C. 122(b), that patent application publication is available as prior art under pre-AIA 35 U.S.C. 102(a) and 102(b) and 35 U.S.C. 102(a)(1) as of its patent application publication date."
Unpublished abandoned applications may become prior art if they are identified or claimed in certain published documents, as per 37 CFR 1.14(a)(1)(iv).

To learn more:

Question 59

What should I do if the title of my invention is not specific to the claimed invention?

Accepted Answer

If the title of your invention is not specific to the claimed invention, you should refer to MPEP § 606.01 for guidance. The MPEP § 1302.04(a) directs patent examiners and applicants to this section:

"Where the title of the invention is not specific to the invention as claimed, see MPEP § 606.01."

MPEP § 606.01 provides detailed instructions on how to create a title that accurately reflects the claimed invention. You may need to amend the title to make it more specific and descriptive of your actual invention as claimed in the patent application.

To learn more:

Question 60

What types of mistakes can be corrected with a Certificate of Correction?

Accepted Answer

According to MPEP 1481, there are three types of mistakes that can be corrected with a Certificate of Correction:

Clerical mistakes
Typographical mistakes
Mistakes of minor character

The MPEP states: "Two separate statutory requirements must be met before a Certificate of Correction for an applicant's mistake may issue. The first statutory requirement concerns the nature, i.e., type, of the mistake for which a correction is sought. The mistake must be: (1) of a clerical nature, (2) of a typographical nature, or (3) a mistake of minor character."

It's important to note that these mistakes must not involve changes that would constitute new matter or require reexamination.

To learn more:

Question 61

What is the difference between an election with traverse and without traverse?

Accepted Answer

The key differences between an election with traverse and without traverse are:

Election with Traverse	Election without Traverse
Applicant challenges the restriction requirement Preserves right to petition Requires examiner to respond to arguments May lead to withdrawal of restriction	Applicant accepts the restriction requirement Waives right to petition Simplifies examination process Restriction becomes final

MPEP 818.01(a) states:

"If applicant does not distinctly and specifically point out supposed errors in the restriction requirement, the election shall be treated as an election without traverse."

This means that a clear and specific traversal is necessary to maintain the right to petition and to require the examiner to reconsider the restriction requirement. An election without traverse, on the other hand, simplifies the process but limits the applicant's options for challenging the restriction later in the examination.

To learn more:

Question 62

Can examiners make changes to the abstract of a patent application?

Accepted Answer

Examiners can make changes to the abstract of a patent application, but there are specific guidelines to follow. According to MPEP 1302.04:

"At the time of allowance, substantive changes made by the examiner to the abstract must be done by an examiner's amendment after first obtaining approval from the applicant."

This cautious approach is due to the legal significance of the abstract, as noted in court decisions:

"As noted by the court the abstract may be used to determine the meaning of claims. See Pandrol USA, LP v. Airboss Railway Products, Inc., 320 F.3d 1354, 1363 n.1, 65 USPQ2d 1985, 1996 n.1 (Fed. Cir. 2003), Hill-Rom Co. v. Kinetic Concepts, Inc., 209 F.3d 1337, 1341 n.1, 54 USPQ2d 1437, 1443 n.1 (Fed. Cir. 2000)."

Examiners should review the abstract for compliance with 37 CFR 1.72(b) and point out defects to the applicant early in the prosecution process to allow for necessary changes.

To learn more:

Question 63

How can the public access information from abandoned applications?

Accepted Answer

The public can access information from abandoned applications in several ways:

If the abandoned application was published, its contents are open for public inspection as stated in 37 CFR 1.11(a).
The MPEP notes: "Unless a redacted copy of the application was used for the patent application publication, the specification, drawings, and all papers relating to the file of an abandoned published application are open to inspection by the public, and copies may be obtained from the Office."
For unpublished abandoned applications, if they are identified or claimed in certain published documents, their contents may be made available to the public under 37 CFR 1.14(a)(1)(iv).

To learn more:

Question 64

What is a "Notice of New or Revised Publication Date" and when is it issued?

Accepted Answer

A "Notice of New or Revised Publication Date" is a document issued by the USPTO to inform applicants of significant changes to the projected publication date of their patent application. According to MPEP 1127, this notice may be mailed under the following circumstances:

"A 'Notice of New or Revised Publication Date' may be mailed if the publication date changes by more than six weeks due to processing delays, if a secrecy order is removed, or subsequent to the revival of an abandoned application."

This notice ensures that applicants are kept informed of substantial changes to their application's publication timeline, especially when such changes could impact their patent strategy or business decisions.

To learn more:

Notice of New or Revised Publication Date
Patent Application
Publication Timeline
USPTO

This FAQ answers all your questions about patent law, patent procedure, and the patent examination process.

MPEP 140-Foreign Filing Licenses (1)

How can I obtain a foreign filing license?

MPEP 200 – Types and Status of Application; Benefit and Priority (3)

How does a divisional application differ from a provisional application?

Can a provisional patent application claim priority to other applications?

What information should be included in a request to delete a named inventor in a CPA?

MPEP 2000 – Duty Of Disclosure (1)

What is an Information Disclosure Statement (IDS) in patent prosecution?

MPEP 2003 – Disclosure — When Made (1)

What is an Information Disclosure Statement (IDS) in patent prosecution?

MPEP 201 – Types of Applications (2)

How does a divisional application differ from a provisional application?

What information should be included in a request to delete a named inventor in a CPA?

MPEP 2100 – Patentability (1)

How does the USPTO determine if a claim is too broad?

MPEP 2173.04 – Breadth Is Not Indefiniteness (1)

How does the USPTO determine if a claim is too broad?

MPEP 2200 – Citation Of Prior Art And Ex Parte Reexamination Of Patents (2)

How should I address correspondence for ex parte reexamination requests?

What is the difference between a “substantial new question of patentability” and a “prima facie case of unpatentability”?

MPEP 2224 – Correspondence (1)

How should I address correspondence for ex parte reexamination requests?

MPEP 2242 – Criteria For Deciding Request Filed Under 35 U.S.C. 302 (1)

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MPEP 2300 – Interference And Derivation Proceedings (1)

What is an interference in patent law?

MPEP 2304 – Suggesting An Interference (1)

What is an interference in patent law?

MPEP 2400 – Biotechnology (2)

What fees are associated with late submission of a “Sequence Listing XML” in PCT applications?

How should I label and package optical discs containing a “Sequence Listing XML”?

MPEP 2413.03 – How To Submit The "Sequence Listing Xml" (1)

How should I label and package optical discs containing a “Sequence Listing XML”?

MPEP 2500 – Maintenance Fees (1)

What happens if I miss the maintenance fee payment and grace period?

MPEP 2501 – Introduction (1)

What happens if I miss the maintenance fee payment and grace period?

MPEP 2800 – Supplemental Examination (3)

How do I update my address for patent correspondence with the USPTO?

How do I update my address for patent correspondence with the USPTO?

How do I file papers in an ex parte reexamination resulting from a supplemental examination?

How does the USPTO determine if a Substantial New Question of Patentability is raised?

MPEP 2805 – Correspondence With Patent Owner; Patent Owner Address (1)

How do I update my address for patent correspondence with the USPTO?

How do I update my address for patent correspondence with the USPTO?

MPEP 2806 – How To File Papers In A Supplemental Examination Proceeding And In Any Resulting Ex Parte Reexamination Proceeding (1)

How do I file papers in an ex parte reexamination resulting from a supplemental examination?

MPEP 2816.03 – Content Of The Determination (1)

How does the USPTO determine if a Substantial New Question of Patentability is raised?

MPEP 2900 – International Design Applications (3)

What is the timeline for submitting an IDS in an international design application?

What are the Information Disclosure Statement (IDS) requirements for international design applications?

How can I specify a correspondence address for an international design application filed with the USPTO as an office of indirect filing?

MPEP 2912 – Correspondence In Respect Of International Design Applications Filed With The Uspto As An Office Of Indirect Filing (1)

How can I specify a correspondence address for an international design application filed with the USPTO as an office of indirect filing?

MPEP 2920.05 – Examination (1)

What are the Information Disclosure Statement (IDS) requirements for international design applications?

MPEP 2920.05(F) – Information Disclosure Statement In An International Design Application Designating The United States (1)

What is the timeline for submitting an IDS in an international design application?

MPEP 300 – Ownership and Assignment (6)

How does joint ownership work for patents and patent applications?

What happens if a patent assignment is not recorded with the USPTO?

What happens if a patent assignment is not recorded with the USPTO?

How can I correct an error in a recorded assignment document at the USPTO?

What are the requirements for recording an assignment of a patent or patent application?

What happens if an assignment document is not recorded at the USPTO?

What happens if an assignment document is not recorded at the USPTO?

Do certified copies of patent applications include assignment information?

MPEP 301-Ownership/Assignability of Patents and Applications (2)

How does joint ownership work for patents and patent applications?

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MPEP 302 – Recording of Assignment Documents (2)

What happens if a patent assignment is not recorded with the USPTO?

What happens if a patent assignment is not recorded with the USPTO?

What happens if an assignment document is not recorded at the USPTO?

What happens if an assignment document is not recorded at the USPTO?

MPEP 303 – Assignment Documents Not Endorsed on Pending Applications (1)

Do certified copies of patent applications include assignment information?

MPEP 323 – Procedures for Correcting Errors in Recorded Assignment Document (1)