Can patent examiners submit prior art under 35 U.S.C. 301?
No, patent examiners are not permitted to submit prior art under 35 U.S.C. 301 on their own initiative. MPEP 2203 clearly states:
Patent examiners should not, at their own initiative, create a submission under 35 U.S.C. 301 and place it in a patent file or forward it for placement in the patent file.
The MPEP further explains the reasoning behind this restriction:
Patent examiners are delegated by the Director with the responsibility of making decisions as to patentability. Any activity by examiners which would appear to indicate that patent claims are not patentable, outside of those cases pending before them, is inappropriate.
This policy ensures that examiners remain objective and focus solely on the cases assigned to them, without potentially influencing other patent files or proceedings.
To learn more: