How are confidential materials handled in reissue applications open to the public?
Confidential materials submitted under MPEP § 724.02 in reissue applications open to the public under 37 CFR 1.11(b) are handled as follows:
- Materials are kept separate from the main application file
- They are not publicly available until a determination of materiality to patentability is made
- If found not material, they can be expunged upon petition
- If found material, the petition to expunge is denied, and the materials become part of the public record
The MPEP states: ‘If any portion or all of the submitted information is found to be material to patentability, the petition to expunge will be denied and the information will thereafter become a permanent part of the reissue application file and open to the public.’
However, there is a provision for redaction: ‘Where a submission containing protected material is found to be material to patentability, it still may be possible to redact the submission to eliminate the protected material while retaining the important material.’
This process balances the need for public disclosure in reissue applications with the protection of genuinely confidential information.
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