How are materials submitted under MPEP § 724.02 treated in applications covered by 35 U.S.C. 122?

This page is an FAQ based on guidance from the Manual of Patent Examining Procedure. It is provided as guidance, with links to the ground truth sources. This is information only: it is not legal advice.

Materials submitted under MPEP § 724.02 in applications covered by 35 U.S.C. 122 are treated as follows:

• The materials are kept in a sealed envelope marked “Not Open To The Public”.
• They are not publicly available until a determination is made regarding their materiality to patentability.
• After publication under 35 U.S.C. 122(b)(1), the materials are only released if no petition to expunge was filed or if such a petition was denied.
• The examiner reviews the application file for any pending petitions to expunge before abandonment or allowance.

As stated in the MPEP: “Any materials submitted under MPEP § 724.02 in an application covered by 35 U.S.C. 122 will be treated in the following manner: (A) The submitted material will be maintained in the original envelope or container (clearly marked “Not Open To The Public”) and will not be publicly available until a determination has been made as to whether or not the information is material to patentability.”