What happens if the USPTO receives a FOIA request for confidential information in a patent term extension application?

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.

If the United States Patent and Trademark Office (USPTO) receives a Freedom of Information Act (FOIA) request for confidential information in a patent term extension application, specific procedures are followed. According to MPEP 2760:

“Should the Office receive a Freedom of Information Act (FOIA) request for the material, the applicant will be provided notice and an opportunity to substantiate its claim that the material is proprietary before the Office determines whether disclosure of the material is required under the FOIA.”

This process ensures that:

• The applicant is notified of the FOIA request.
• The applicant has a chance to argue why the information should be considered proprietary.
• The USPTO makes a determination based on the FOIA requirements and the applicant’s arguments.

It’s important for applicants to be prepared to substantiate their claims of confidentiality if such a request is made.