What types of information can be included in a protest under 37 CFR 1.291?
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.
A protest under 37 CFR 1.291 can include various types of information that may make the grant of a patent improper. The MPEP states:
“Any information which, in the protestor’s opinion, would make the grant of a patent improper can be relied on in a protest under 37 CFR 1.291.”
While prior art documents like patents and publications are common, protests are not limited to these. They can be based on any facts or information adverse to patentability. Some examples include:
- Information demonstrating public knowledge or use
- Evidence of public use or sale
- Information about inventorship or abandonment
- Information related to compliance with 35 U.S.C. 112
- Evidence of fraud or violation of duty of disclosure
The MPEP emphasizes that “the content and substance of the protest are more important than whether prior art documents, or some other form of evidence adverse to patentability, are being relied on.”