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KC Patent Bar > M.P.E.P. 100 Secrecy, Access, National Security, and Foreign Filing > Flashcards

M.P.E.P. 100 Secrecy, Access, National Security, and Foreign Filing Flashcards

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1
Q

MPEP Chapter 100

A

Secrecy, Access, National Security and Foreign Filing

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2
Q

Just a Key to Access on Exam

A

Separate and memorize the different exceptions to confidentiality for;

  1. Pending Applications
  2. Abandoned Applications
  3. Files available without exception
  4. Rules Covering Published Applications
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3
Q

General Rule for Access

A

Both are maintained in confidence of the Patent Office

  1. Unpublished Pending
  2. Abandoned Applications

**Where Enforceable Rights Exists Outside the PTO,
Full Access to Files inside the PTO Exists.

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4
Q

Who can access to Unpublished Pending Applications?

A

Limited to;

  1. Applicant,
  2. Attorney,
  3. Assignee (not non-exclusive licensee),
  4. Anyone with writing authorization from one of previous.
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5
Q

Access to Issued Patent or Published Application

A

Anyone can inspect and copy it.

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6
Q

Exceptions to Access to Unpublished Pending Applications and Unpublished Abandoned Applications

A
  1. Referred to in the text of an issued U.S. Patent
    OR
  2. Claimed for Domestic priority.
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7
Q

Access for Reissues and Reexaminations

A

Public

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8
Q

When is the File Open to the Public?

A
  1. Early Publication

2. After Reissue of Patent

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9
Q

How do you obtain a copy of a Accessible File?

A
  1. Written Request
  2. Payment of copies
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10
Q

Ways to Avoid Publication

A
  1. Express Abandonment
  2. Request to Opt-Out of Publication
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11
Q

How to Expressly Abandon an application?

A
  1. File a Petition
  2. Needs to be 4 Weeks prior to Publication at the latest.

37 CFR 1.138

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12
Q

Access to Interference Files

A

Available If;
1. The interference has been terminated,
AND
2. One of the parties of interference was a Patent;

OR
2. An award for priority has been made.

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13
Q

Access to Status (pending, abandoned, published, or issued)

A

Will Provide if:
1. When access can be obtained (owner, assignee, attorney);
OR
2. When the application is identified by serial number and filing date in a published patent document or a U.S. application open to public;
OR
3. When the application is in the national phase of an international (PCT) application in which the United States has been indicated as a receiving state, i.e., designated in the Request.

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14
Q

How to Acquire Access to Status of a Patent Document

A
  1. Written request
    AND
  2. Copy of document.
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15
Q

Access to Parent Status of CON, CIP, DIV

A

If CON, CIP, DIV qualifies to have its status disclosed.

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16
Q

Who can Access Pending or Abandoned File?

A
  1. Inventors UNLESS barred by Assignee
  2. Any inventors named without signature under Rule 1.46 or 1.45.
  3. Assignee, Partial Assignee, Licensee (Exclusive)
  4. The attorney or agent, on anyone with written authorization.
  5. ApplicantPower to Inspect is unlimited UNLESS limited.*Need permission for this
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17
Q

How long does a granted petition for access last?

A

For a limited amount of time,

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18
Q

Access to Abandoned, Unpublished Applications

A
  1. ONLY by written request
    AND
  2. MUST Satisfy one of these exceptions:
    - Referred to in a U.S. Patent or published application; or
    - Referred to in a U.S. Application open to public inspection; or
    - Referred to in a published PCT application which designates the U.S.
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19
Q

Access to Unpublished Pending Application File Process

A
  1. Petition showing “Special Circumstances” is required when the owner is using the patent application to interfere with a competitor’s business;
  2. Petition Fee paid;
  3. Petition served to applicant/owner or copy supplied to Patent Office, so that applicant has opportunity to protest access should be limited to less than the entirety of the file.

OR

  1. Request under “Other Circumstances” when:
    - the patent relies upon the application for priority; or
    - when the application is incorporated in its entirety by reference into a patent or published application.
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20
Q

Access to Unpublished Pending Application File: Special Circumstances vs. Other Circumstances

A

Special Circumstances (Petition):
1. When owner is using the patent application to INTERFERE WITH COMPETITOR’S business;

Other Circumstances (Request)
1. When a PATENT RELIES UPON the application for priority;
OR
2. When the Application is INCORPORATED in its ENTIRETY by REFERENCE into a Patent or Published Application.

21
Q

What is the purpose of service for Access to Unpublished Pending Application File?

A

Service that allows for protest for limited access or no access to the file.

22
Q

What happens when a pending application is incorporated only in part to an issued Patent?

A

ONLY partial access is available Still needs Notice/Service

23
Q

Access to an Abandoned Application in Rule 1.53(d) CPA (Continuation or Divisional of Design Applications) file

A

Same as access to a pending, unpublished application
1. Petition must be filed est. Special Circumstance;
2. Petition Fee paid;
3. Petition served or copy supplied to Patent Office;

OR

  1. make a Request under “Other Circumstances”
    - Patent relies upon application for priority
    - application incorporated by reference into a patent or published application
  2. Fee
24
Q

Access to Assignment Records

A

The same rules apply to access to assignment records as apply to the applications assigned.

25
Q

Access: Petition and Fee NOT Required

A
  1. Issued Patents,
  2. Reissue,
  3. Reexam,
  4. Some Interference Files,
  5. ALL Published Applications,
  6. Abandoned Applications (Except for Special Circumstances),
    AND
  7. Unpublished Applications (Except for Special Circumstances).
26
Q

Access: Petition and Fee Required

A
  1. Pending Application Prior to Publication,
  2. Application Not Subject to Publication,
  3. SOME Interference Files,
  4. Special Circumstances in Abandoned Application,
    AND
  5. Special Circumstances in Unpublished Application.
27
Q

Are there Exceptions to Confidentiality in the following:
1. Issued Patents,
2. Reissue,
3. Reexam,
4. Some Interference Files
AND
5. All Published Applications
~~~

A

They are All Available.

28
Q

Are there Exceptions To Confidentiality in the following:

  1. Pending Application Prior to Publication
  2. Pending Application Not Subject to Publication
A

Not Available EXCEPT

  1. Interference with Business.
  2. Patent relies upon application for priority.
  3. Application incorporated by reference into a patent or published application.
29
Q

Access: Exception to Confidentiality:

  1. Abandoned Applications
  2. Unpublished Applications
A
  1. Referred to in Issued Patent or Published Application
  2. Referred to in Application open to public inspection
  3. Referred to in Published PCT designating U.S.
30
Q

Access: Service NOT Required

A
  1. Issued Patents,
  2. Reissue,
  3. Reexam,
  4. Some Interference Files,
  5. ALL Published Applications,
  6. Abandoned Applications,
    AND
  7. Unpublished Applications.
31
Q

Access: Service Required

  1. Pending Application Prior to Publication
  2. Pending Application Not Subject to Publication
A

Yes Except for:

  1. Copy of Application “as filed”
  2. Patent relies upon application for priority.
  3. Application incorporated totally by reference into a patent or published application.
32
Q

Access to Status Given

A
  1. Issued Patents,
  2. Reissue,
  3. Reexam,
  4. Some Interference Files,
  5. ALL Published Applications,
  6. When Access can be obtained,
  7. Identified by a number in a Published Patent document,
    OR
  8. National Phase PCT Application where U.S. is indicated as receiving state.
33
Q

Access for Inventors or Assignee W/out Petition

A

Everything and Anything

34
Q

Secrecy Order

A

Patent Office can issue an order to keep inventions and applications secret where disclosure or publication would be contrary to the National interest.

Applies to:

  1. Original Application
  2. Any Continuation
  3. Divisionals
  4. Subsequent disclosure that is subject to the order.

**Two People at the Pentagon

35
Q

When is a Foreign Filing License required?

A
  1. If the invention is CONCEIVED in the United States,
  2. Before an Application covering the invention can be filed in another Country.
36
Q

Three Ways to Acquire a Foreign Filing

A
  1. Passage of Six month following the Filling of a U.S. Application including provisional applications.
  2. By being granted specifically on the filing receipt, which also will indicate a date that the license becomes effective
    OR
  3. By the granting of a petition asking for one.
  • *Can be retroactive
  • **Application has includes Foreign Filing Application so must request to deny the guarantee.
37
Q

When can a foreign filing license be obtained retroactively?

A

Factual circumstances establish in detail that the illegal foreign filing occurred through ERROR.

38
Q

Who knows of a filed application?

A

You and or the owner.

39
Q

How are applications maintained?

A

IN confidence

40
Q

Way to Approach Exam Question

A
  1. Published/Issued?
  2. Who can grant?
  3. No assignment?
41
Q

When can you get access to assignment records?

A

Goes with the same access and status of the Patent, UNLESS referred to if at least one of the documents reference a patent.

42
Q

An unpublished abandoned application can be accessed if it is ___________ in an issued U.S. Patent.

A

Referred to

43
Q

An “as filed” copy of a pending unpublished application can be obtained without service if it is in whole _____________________ an issued patent.

A

Incorporated by Reference

44
Q

What kind of inventions require DOE and NASA statements?

A

Any invention disclosures relating to atomic energy (42USC 2182).

45
Q

When do DOE and NASA statements need to be filed?

A

An informal request for statements is made. If no response is made, then a response to the formal request must be made within 30 days.

46
Q

What must DOE/NASA statements say?

A

Set forth facts surrounding the making of the invention and whether the invention was made or conceived in the course of a government contract.

47
Q

What files are always available?

A
  1. Reissued applications
  2. Reexamination applications
  3. Issued and published applications
  4. Interference files after an award of priority is made or the interference is terminated.
48
Q

What is the fee for obtaining status of an application?

A

$0

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