How are materials submitted under MPEP § 724.02 handled in patent applications?
Materials submitted under MPEP § 724.02 are handled differently depending on whether they are submitted in an original application subject to 35 U.S.C. 122 or in a reissue application or reexamination file open to the public.
For original applications:
- Materials are maintained in a sealed envelope marked ‘Not Open To The Public’
- They are not publicly available until a determination of their materiality to patentability is made
- If found not material, they can be expunged upon petition
- If found material or if no petition to expunge is filed, they become part of the public record
As stated in the MPEP: ‘Prior to publication, an original application is not open to the public under 35 U.S.C. 122(a). After publication of the application under 35 U.S.C. 122(b)(1), where the application file and contents are available to the public pursuant to 37 CFR 1.11 or 1.14, any materials submitted under MPEP § 724.02 will only be released to the public with any other application papers if no petition to expunge (37 CFR 1.59) was filed prior to the mailing of a notice of allowability or notice of abandonment, or if a petition to expunge was filed and the petition was denied.’
To learn more: