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USPTO Patent Bar > MPEP 100 to 500, 1500 (design), 1600 (plants) > Flashcards

MPEP 100 to 500, 1500 (design), 1600 (plants) Flashcards

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1
Q

What’s the general rule for whether a file is accessible to the public?

A

Where enforceable rights exist outside the PTO, full access to files inside the PTO exists.

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2
Q

An unpublished abandoned application can be accessed if it is ______ in an issued U.S. patent.

A

An unpublished abandoned application can be accessed if it is_identified_in an issued U.S. patent.
Rule 1.14 (a)(1)(iv), MPEP 101

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3
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An “as filed” copy of a pending unpublished application can be obtained without service if it is in whole __________ an issued patent.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 into be reference. MPEP 100

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4
Q

Name three ways to obtain a foreign filing license.

A
  1. Six months after filing provisional or non-provisional in the U.S.
  2. It’s granted on the filing receipt.
  3. Petition.
    MPEP 140
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5
Q

Who can access a pending or abandoned file (e.g., an application)?

A

(1) Applicant
(2) practitioner of record,
(3) the assignee,
(4) any inventor,
(5) if no power of attorney, then
anyone given permission by any of the above.
MPEP 104:

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6
Q

What type of application is available to the public, even if not published yet.

A

Reissue application.

MPEP 100

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7
Q

(a) What should you do if your client’s patent is filed in a foreign country without a foreign filing license?
(b) What happens to the corresponding U.S. application if you don’t obtain the license?
(c) What necessitates that the patent application needs a foreign filing license?

A

(a) Petition to retroactively obtain a foreign filing license, even after issue. Must establish erroneous foreign filing.
MPEP 140, USC 184

(b) patent is invalid.
(c) Invention was in the U.S.

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8
Q

What rule (rule number) concerns correction of inventorship, and what forms are required?

A

37 CFR 1.48. Application Data Sheet, declaration.

MPEP 602.01(c)

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9
Q

What do non-provisional applications require that provisional applications do not?

A

Oath, claims. MPEP 200

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10
Q

Under 37 CFR 1.48, when do you need to file a new declaration?

A

When adding a new inventor. MPEP 200

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11
Q

What are requirements for a continuation and divisional applications?

A

Parent still pending, one common inventor. MPEP 200

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12
Q

What do provisional application lack?

A

PODIC: priority, oath, design, IDS, claims. MPEP 200

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13
Q

What is a substitute application?

A

Same as a continuation, but parent is not copending. Don’t get priority date. MPEP 200

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14
Q

What is a continued prosecution application? (CPA)

A

A continuation or divisional of a design application. MPEP 200

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15
Q

Benefit of foreign priority: Say you file in Sweden on May 10 2017, in France on May 20, 2017, and in the U.S. on May 15 2018. Can you claim priority to the either application?

A

No. Not Sweden b/c it’s been more than a year. Not France b/c it’s not the first filed application.
35 USC § 119; MPEP 201.13. Benefit of foreign priority only available to first filed foreign application. Also, U.S. application must be filed within one year of the first foreign filing.

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16
Q

To convey legal title, an assignment must be ____________.

A

in writing MPEP 300

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17
Q

A recorded document is available if ____ of the patent properties assigned is, or becomes, an issued patent.

A

any, MPEP 300

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18
Q

Who can apply for a U.S. patent? Who cannot?

A

Anyone can apply, except for PTO employees. MPEP 300

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19
Q

In order for a second purchaser to take title because of a failure of the first purchaser to record, the second purchase must be (a) _______, and (b) _________.

A

(a) The second buyer took for consideration (i.e., it was not a gift or bequest .. .i.e., transferred via a will); and
(b) The second buyer did not know of the first sale (i.e., purchased without notice).
MPEP 300

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20
Q

An assignment in a foreign language will not be accepted for recording unless _________.

A

It is accompanied by a translation. MPEP 300

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21
Q

Who owns an invention unless it’s previously assigned?

A

The inventors. MPEP 300

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22
Q

When is the assignment record of an abandoned non-reissue application available to the public?

A

When the abandoned application is referred to in the assignment record of a issued patent. MPEP 301.01. Rule 1.12

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23
Q

When can an attorney/agent withdraw representation?

A
  • If there’s sufficient time to respond to any outstanding actions.
  • And PTO grants the request.

MPEP 402.06.

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24
Q

When is notice to withdraw representation (of a client) become effective?

A

When approved by the USPTO, not when it’s received. MPEP 402. 06.

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25
Q

When does revocation of power of attorney become effective?

A

When received by the USPTO. MPEP 402.05.

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26
Q

Who appoints a patent agent or attorney?

A

The applicant or patent owner, via a power of attorney. MPEP 402.02(a).

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27
Q

Withdrawal of representation: What does practitioner owe client?

A

Sufficient notice.

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28
Q

Who and when can someone sign an oath/declaration on behalf of an inventor?

A

When the inventor is hostile (uncooperative), incapacitated, or dead, A co-inventor or someone of sufficient proprietary interest may sign a substitute statement. 37 CFR 1.45, 1.46

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29
Q

What is a substitute statement?

A

An applicant under may execute a substitute statement in lieu of an oath or declaration under §1.63 if the inventor is deceased, is under a legal incapacity, has refused to execute the oath or declaration under §1.63, or cannot be found or reached after diligent effort. Rule 1.64. MPEP 409.05

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30
Q

Anyone signing a paper must believe that its contents are:

A

Proper, not frivolous, and supported by evidence. MPEP 402.03

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31
Q

Can a registered practitioner submit an application or office action response without being “of record,” e.g., lacking power of attorney?

A

Yes. MPEP 405.

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32
Q

When application has different inventors, can each inventor have his own agent of record?

A

Yes. MPEP 402.10.
“(A) If coinventor A has given a power of attorney to a patent practitioner and coinventor B has not, replies must be signed by the patent practitioner of A and by coinventor B.
(B) If coinventors A and B have each appointed their own patent practitioner, replies must be signed by both patent practitioners.”

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33
Q

Inventors X and Y jointly conceive and reduce to practice an invention. Subsequently, in the course of determining how best to commercially exploit the invention, they have a “falling out” and decide to go their own ways. Inventor X , decides to obtain patent protection for the invention, but inventor Y refuses to join in any application. What action accords with proper PTO practices and procedure?

A

Inventor X should file an application for patent on behalf of himself and inventor Y and provide proof of the pertinent facts relating to inventor Y’s refusal to join in the application. (substitute statement)

MPEP 409.03 (refusal to join)

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34
Q

For a non-provisional utility app, what is required for completeness, and hence getting a filing date.

A

“the date on which a specification, with or without claims, is received in the Office” MPEP 506, CFR 1.53(b). But sending in drawings will add new matter, so then later filing date anyway.

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35
Q

What applicants qualify as small entities?

A

(a) a person
(b) small business per the Small Business Act, independent inventors or nonprofits. (Usually includes a maximum of 500 employees.)
(c) So long as applicant has not transferred rights to a non-small entity.

MPEP 509.02

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36
Q

What disqualifies an independent inventor as a microentity?

A

Any of:

(a) not a small entity,
(b) named on 4 or more filed patents (any type),
(c) Income > 3 times median income,
(d) has licensed or given ownership interest to non-microentity. MPEP 509.04.

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37
Q

What kind of application can be filed via facsimile?

A 
A CPA (continued prosecution application), designs only. 
- But a certificate of transmission will not help with getting filing date! Just eastern time.

CFR 153(d). 502.01

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38
Q

What triggers a notice of missing parts?

A

Missing: filing fee, search fee, examination fee, signed application data sheet.

. 2 months to reply. 601.01(a). 600-15

Filing oath/declaration can now be delayed until the issue fee is paid.

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39
Q

Petitions to make special require a fee, with two exceptions. They are:

A

Age, health.

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40
Q

A Certificate of Mailing can be used for any paper filed in the Patent Office except for:

A
  1. New patent applications (either Rule 1.53(b) or 1.53(d)) including Continuations, CIPs and Divisions;
  2. Papers filed in an interference which are directed to be filed by hand;
  3. Agreements settling an interference; and
  4. Any PCT papers.
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41
Q

What section of the MPEP lists submissions that can’t be sent by facsimile?

What section of the rules lists submissions that can’t be send by facsimile?

A

MPEP 500. Specifically, MPEP 502.01.

Rules: 37 CFR 1.6 and 1.8.

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42
Q

Name three categories for small entity:

A

a) Independent Inventors
b) Non-profits
c) Small Businesses (< 500 employees, including part time and temporary)
MPEP 509.02 ?? Rule 1.27 doesn’t mention 500 employees.

43
Q

A patent application mailed with a Certificate of Mailing will receiving a filing date as of:

A

The date it is received at the Patent Office.

44
Q

When filing a continuation application of a parent that claims priority to a foreign application, in what instance do you not need to claim for priority to the foreign application?

A

A CPA in which a proper claim was made in the parent. (Continuing Prosecution Application)

45
Q

Attorney receives a patent application written in the Japanese language on May 3, 2008, from applicant. The applicant is a citizen and resident of Japan,
indicates that she offered the invention for sale in U.S. Virgin Islands on May 4, 2007. She also published an article describing the invention on May 30, 2007. She is concerned about loss of U.S. rights and wants you to protect those rights. To protect and preserve your client’s rights, you should:

A

E. File the patent application in the Japanese language in the Office on May 3, 2008.

Not:
D. Can’t file app in U.S. receiving office under PCT b/c applicant is a citizen of Japan, and cannot use the US receiving office to file a PCT application. (But could file to the International Bureau to via the PTO)
See Rule § 1.412(a).

46
Q

Your office is located in Arlington, Virginia. You prepared a patent application for an inventor, who is located in California. It is 3 p.m. and you have just received the executed application from inventor. Just as you are about to and carry the application to the PTO for filing, the inventor telephones you and requests that the application include disclosure and additional claims to cover a “minor improvement” of his invention. The application must be filed today to avoid a potential “on sale” statutory bar. If the application is filed today, what would be most appropriate to ensure that it will receive today’s filing date to cover the “minor improvement?”

A

D. Rewrite the specification to include a description of and claims to the “minor improvement” and then file the application without the executed oath.

Not:
C. You can’t amend an oath, and the oath is not needed for a filing date.

E. Cannot fax an application.

47
Q

Which fees are discounted for small entities?

A

35 U.S.C 41:
(a) General Fees - filing fee, excess claim fees,
(b) Examination Fees: issue, appeal, extension,
maintenance
(d)(1) Patent Search fees.

See 35 U.S.C 41(h) and 509.02.

48
Q

Can an inventor who owns or is of high-rank a large company still be an independent inventor, and qualify as a small entity?

A

Yes, so long as the inventor has either
(i) not assigned, granted, conveyed, or licensed, and is under no obligation under contract or law to assign, grant, convey, or license, any rights in the invention.
or did so to a difference small entity.
37 CFR 1.27

49
Q

When sending a hard copy to the USPTO, what’s the only way to get your filing date to be the day you give it to the courier?

A

USPS Express Mail.

37 CFR § 1.8 and 1.10; MPEP 502, 512, and 513.

50
Q

After filing an non-provisional or national-stage application, when is the deadline for claiming priority to a parent application, e.g., provisional or a foreign application, or a non-provisional in case of a CON or a DIV?

A

“The claim for priority must be filed within the later of four months from the actual filing date of the application or sixteen months from the filing date of the prior foreign application” Rule 1.55(d) and Rule 1.78(4). Also MPEP 211.03.

Can claim foreign priority post-deadline with a petition and fee. Rule 1.55(e)

51
Q

When are design patents published?

A

Upon issuance. Not before.

52
Q

What is the reference date for the patent term of a DIV, CON, or CIP?

A

“A patent granted on a continuation, divisional, or continuation-in-part application that was filed on or after June 8, 1995, will have a term which ends twenty years from the filing date of earliest [non-provisional] application for which a benefit is claimed under.” 35 US 120, MPEP 2701

53
Q

When can you claim priority to a foreign-filed application when that application isn’t the first foreign filed application?

A

We say that to claim priority from the second-filed application, the following formula must be satisfied: File in Country A, withdraw in Country A and subsequently refile in Country A. USC 119(c)

54
Q

In what circumstances is a foreign filing license required?

A

If the invention is conceived in the United States.

55
Q

You file a non-provisional application that claims priority to a provisional application. Then you want to file in a foreign country. Do you need to get a foreign filing license?

A

Only if
(a) The filing license was not granted on the filing receipt.
and
(b) it hasn’t been six months since filing provisional.

Otherwise the license was granted 6 months after filing provisional.
MPEP 140.

56
Q

When is an English language translation needed for priority document?

A 
Rule 55(g)(3) says that an English-language translation is only required in three circumstances:
(1) when the application is involved in an interference
    or derivation proceeding;

(2) when necessary to overcome the date of a
reference relied upon by the examiner; or

(3) when specifically required by the examiner.

57
Q

When an unpublished pending application is referred to, e.g., incorporated by reference, in a published application or patent, what can you access?

A

The application as filed, but not the entire contents of the pending application.
Rule 1.14(a)(1)(vi)

58
Q

What is required of a person who executes a substitute statement?

A

The person executing the substitute statement is doing this in lieu of the inventor. So it’s necessary for the executor make the required assertions in place of the inventor, and understands content of the invention and duty to disclose.
See 37 C.F.R. 1.64 and 1.56.

59
Q

What rights does an licensee have regarding prosecution of an application and access rights?

A

Only the assignee of record of the entire interest can intervene in the prosecution of an application or interference to the exclusion of the applicant. An assignee of a part interest or a licensee of an exclusive right is entitled only to inspect the application.

MPEP 106.01

60
Q

What information must a substitute statement include?

A

Why the substitute statement is needed. Rule 1.64.

61
Q

When filing a CON application, do you need a new oath?

A

Typically not. Recall Ed and Greg’s CON that Andrew filed.

62
Q

What kind of applications cannot claim priority from a provisional application?

A

Design application. 36 USC 172.

63
Q

What are you certifying when filing papers with the Patent Office?

A

They constitute certification under rule 11.18(b):

a. True and accurate to best of one’s knowledge
b. being presented for proper purpose
c. legal arguments warranted by existing law
d. factual assertions have evidentiary support, and denials of any factual assertions are supported by some evidence.

64
Q

Someone has threatened your client with a lawsuit based on infringement of an unpublished patent application that will soon be issued. What should you do?

A

Petition the Commissioner for access on the ground of Special Circumstances. Rule 1.14(i), USC 122.

65
Q

Ethics: Can you file a claim that you know is not patentable over the prior art?

A

No. Rule 11.18.

66
Q

All plants are patentable except for:

A

Not: bacteria and those that are tuber propagated or other than a tuber-propagated plant or a plant found in an uncultivated state. tuber-propagated: potatoes, Jerusalem Artichoke.
MPEP 1601.

67
Q

How does reduction to practice in plant patents different from utility patents?

A

For plant patents, you must reduce to practice before filing by asexually reproducing the claimed plant – by means other than seeds.

68
Q

Can a plant be patented if it can be reproduced by seeds?

A

Yes.

69
Q

Plant patents: If you want color drawings, how many copies must you provide PTO?

A

Two. Rule 1.165.

70
Q

What types of patents have maintenance fees?

A

Utility only. Not plant or design. MPEP 2501, 35 USC 41.

71
Q

When can a claim in a CIP have the priority date of its parent?

A

“Only the claims of the continuation-in-part application that are disclosed in the manner provided by 35 U.S.C. 112(a) in the prior-filed application are entitled to the benefit of the filing date of the prior-filed application.”

MPEP 211.05 I B

72
Q

In what circumstances can a non-provisional application be converted to a provisional application?

A

“The request and fee must be submitted in the non-provisional application prior to the earlier of the abandonment of the non-provisional application, the payment of the issue fee, or the expiration of 12 months after the filing date of the non-provisional application.” MPEP 201.04, near end.

73
Q

What cannot be filed with via EFS-web? Or where can you find this information?

A

MPEP 502.05. “2. Types of Patent Applications and Documents Not Permitted to be Filed via EFS-Web.”

  1. Plant patent apps
  2. RCEs for plant apps
  3. Request for IPR
  4. third-part inquiries unless specified by EFS-web
  5. color drawings
  6. patent term extension …
74
Q

When is the deadline for claiming foreign priority to a previously filed design application?

A

Six months.

MPEP 1504 Priority under 35 U.S.C. 119(a)-(d)…
Rule 1.55, 1.72

75
Q

What are the minimum requirements for obtaining a patent on a plant?

A
  1. invent or discover the plant.
  2. Must asexually reproduce the plant.
  3. Plant could not have been found in uncultivated state.
  4. Plant cannot be a tuber.

MPEP 1601.

76
Q

How many claims are allowed in a design patent?

A

Just one!

77
Q

How do you revive a provisional patent application, e.g., if you missed the 12 month deadline for filing a non-provisional?

A

File a petition and pay fee. You get two more months, for a total of 14 months.
Rule 1.78(b), MPEP 211.01(a).

78
Q

For what types of applications is an assignment record open to the public?

A

Published applications, issued patents, and reissued patents. MPEP 301.01. Rule 1.12.

79
Q

Per the rules of professional conduct, what should you do when the client expects you do something that violates the USPTO’s Rules of Professional Conduct or any other law.

A

Consult with the client.

Rule § 11.104

80
Q

When terminating a representation of a client, what should a practitioner do?

A

take steps to the extent reasonably practicable to protect a client’s interests, such as
(a) giving reasonable notice to the client,
(b) allowing time for employment of other counsel,
(c) surrendering papers and property to which the client is entitled and
(d) refunding any advance payment of fee or expense that has not been earned or incurred.
The practitioner may retain papers relating to the client to the extent permitted by other law.

Rule 402.06, Attorney or Agent Withdraws
Rule 11.116

81
Q

What is a practitioner’s duty to former clients?

A

(a) Don’t represent a new client whose interests are adverse to the interests of the former client, unless there’s informed and written consent.
(b) Don’t represent a prospective client if a firm I used to work for had represented a former client with interests adverse to those of the prospective client.
(c) Use information gleaned from representing the client to the client’s disadvantage.
Rule § 11.109.

82
Q

What part of the MPEP/rules/laws talks about the client-practitioner relationship?

Conflicts of interest?

A

Rules 11.101 to 11.119 (skips then to 11.201)

Conflicts of interest: 11.107 to 11.109

83
Q

Ethics and conflicts: When can the same firm/practitioner not represent two parties?

A

When party A sues party B or is filing a challenge to party B’s patents.

84
Q

Under which circumstances must a patent practitioner decline representation or terminate representation if it has already commenced?
A The representation will result in violation of USPTO Rules of Professional conduct.
B The client has used the practitioner’s services to perpetrate a crime or fraud.
C A client insists upon taking action that the practitioner considers repugnant or with which the practitioner has a fundamental disagreement.
D The representation will result in an unreasonable financial burden on the practitioner or has been rendered unreasonably difficult by the client.
E All of the above.

A

Just A. The representation will result in violation of USPTO Rules of Professional conduct.

Other reasons are permissible for terminating. “shall withdraw” means must, where may means may.
37 C.F.R. 11.116

85
Q

What is “competent representation” refer to?

A

“the legal, scientific, and technical knowledge, skill, thoroughness and preparation reasonably necessary for the representation.”
Rule § 11.101.
“ It is rather extraordinary for a practitioner to be found to have failed to provide competent representation within the meaning of the Rules of Professional Conduct.” PLI

86
Q

When can having an inventor sign an oath/declaration violate the Professional Rules of Conduct?

A

When practitioner does this before the patent application is written, or the inventor has not had a chance to review it.

87
Q

What kind of application inherits the application number and filing date from its parent?

A

A CPA (continuation for design application)

88
Q

Say you miss the filing deadline for filing a U.S. application that claims priority to a foreign application. What are your options?

A

Right of priority can be restored with a petition + fee. Rule 1.55(c). Only for unintentional delays. Same as with claiming priority to a provisional application.

89
Q

After purchase of a patent, what is the deadline for recording an assignment (ownership) of a patent?

A

Three months from purchase of the patent. MPEP 301, U.S.C. 261.

90
Q

Who can now apply for a patent, but could not do so before September 16, 2012?

A

The assignee.

Rule 1.42 Applicant for patent

91
Q

What is the difference between “formal” and “informal” drawings.

A

Nothing. “The Office no longer considers drawings as formal or informal; drawings are either acceptable or unacceptable.” MPEP 608.02.

92
Q

For what purpose can a practitioner deposit the practitioner’s own funds into a client trust account?

A

“for the sole purpose of paying bank service charges on that account, but only in an amount necessary for that purpose.”

Rule 11.115

93
Q

Aside from the practitioner’s own funds, what else can the practitioner deposit into a client trust account?

A

“legal fees and expenses that have been paid in advance, to be withdrawn by the practitioner only as fees are earned or expenses incurred.”

Rule 11.115

94
Q

Selected correspondence with the USPTO will not be given benefit of a Certificate of Mailing or Transmission - where can you find this?

A

Rule 1.8(a)(2).

95
Q

Some correspondence mailed to the USPTO can benefit from a Certificate of Mailing, so long as the mailing satisfies what?

A

It’s mailed from within the U.S.

MPEP 512.

96
Q

What is the connection between communications with the PTO that cannot benefit from a certificate of transmission (or mailing) and whether it can be sent via facsimile to the USPTO?

A

If it can’t benefit from certificate of transmission, (rule 1.8), then it cannot be sent via facsimile. Except for CPA applications per rule 1.53(d).

97
Q

Once a patent application is allowed, how do you control who the USPTO issues the patent to?

A

“Unless an assignee’s name and address are identified in … Fee(s) Transmittal form PTOL-85B, the patent will issue to the applicant. Assignment data printed on the patent will be based solely on the information so supplied.”

MPEP 307 Issue to Non-Applicant Assignee
MPEP 1309 II, Issue of Patent

98
Q

When the assignee* applies for a patent, rather than the inventor, what is required when filing?
* or someone with sufficient proprietary interest

A

An application data sheet must include the assignee* in the applicant information section.
* or the person with sufficient proprietary interest
Rule 1.46.

99
Q

What applicant can file and prosecute the applicant’s own case w/o retaining services of a patent practitioner?
A. inventor
B. corporation
C. organizational assignee
D. single member of a limited liability company established by inventor to own the patent rights.
E. All of the above.

A

A. Just the inventor.

Rule 1.31.

100
Q

For a transitional patent application, what are the relevant deadlines for informing the patent office that the pending application includes a claim with a post-AIA priority date?

A

Later of: 4 months from filing, 16 months from pre-AIA priority date, and (if the post-AIA claim is added after filing), when that claim is added.

Rule 1.55(k), 1.78(a)(6)

101
Q

When an applicant establishes itself as a small entity in one application, does the resulting small-entity status apply to other applications?

A

“Status as a small entity in one application or patent does not affect the status of any other application or patent, regardless of the relationship of the applications or patents.”

Rule 1.27(c)(4), MPEP 509.03

102
Q

Prior assignment recorded against a parent application is applied to which of the following applications: CON, DIV, CIP?

A

CON and DIV.

MPEP 306.

103
Q

What can you never get with a certificate of mailing or a certificate of transmission.

A

A filing date.

Rule. 1.8(a)(2)(i)(a).

104
Q

Of the following, which may a power of attorney not name as representative?

  • one or more joint inventors
  • a law firm
  • registered patent practitioners associated with a customer number
  • ten of fewer patent practitioners, by name and reg. number of each.
A

Power of attorney cannot name a law form.

MPEP 402,
Rule 1.32,
“Powers of attorney to firms are not recognized by the U.S. Patent and Trademark Office” - 403.02

USPTO Patent Bar (5 decks)

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