Right of Public To Inspect Patent Files and Some Application Files

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USPTO MPEP › Chapter 0100 - Secrecy, Access, National Security, and Foreign Filing › MPEP § 103

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37 CFR 1.11 Files open to the public.

(a) The specification, drawings, and all papers relating to the file

of: A published application; a patent; or a statutory invention registration are

open to inspection by the public, and copies may be obtained upon the payment of

the fee set forth in §

1.19(b)(2)

. If an application

was published in redacted form pursuant to §

1.217

, the complete file

wrapper and contents of the patent application will not be available if: The

requirements of paragraphs (d)(1), (d)(2), and (d)(3) of §

1.217

have

been met in the application; and the application is still pending. See § 2.27 of

this title for trademark files.

(b) All reissue applications, all applications in which the Office has

accepted a request to open the complete application to inspection by the public,

and related papers in the application file, are open to inspection by the public,

and copies may be furnished upon paying the fee therefor. The filing of reissue

applications, other than continued prosecution applications under

1.53(d)

of reissue applications, will be announced in the

Official Gazette.

The announcement shall include at least

the filing date, reissue application and original patent numbers, title, class and

subclass, name of the inventor, name of the owner of record, name of the attorney

or agent of record, and examining group to which the reissue application is

assigned.

1.510

or §

1.915

have been satisfied will

be announced in the

Official Gazette.

Any reexaminations at the

initiative of the Director pursuant to §

1.520

will also be announced

in the

Official Gazette.

The announcement shall include at

least the date of the request, if any, the reexamination request control number or

the Director initiated order control number, patent number, title, class and

subclass, name of the inventor, name of the patent owner of record, and the

examining group to which the reexamination is assigned.

rector pursuant to §

1.520

will also be announced

in the

Official Gazette.

The announcement shall include at

least the date of the request, if any, the reexamination request control number or

the Director initiated order control number, patent number, title, class and

subclass, name of the inventor, name of the patent owner of record, and the

examining group to which the reexamination is assigned.

(d) All papers or copies thereof relating to a reexamination proceeding

which have been entered of record in the patent or reexamination file are open to

inspection by the general public, and copies may be furnished upon paying the fee

therefor.

(e) Except as prohibited in §

41.6(b)

, §

42.14

or §

42.410(b)

, the file of any

interference or trial before the Patent Trial and Appeal Board is open to public

inspection and copies of the file may be obtained upon payment of the fee

therefor.

37 CFR 1.14 Patent applications preserved in confidence.

(a)

Confidentiality of patent application information.

Patent

applications that have not been published under

35 U.S.C.

122(b)

are generally preserved in confidence pursuant to

35 U.S.C.

122(a)

. Information concerning the filing, pendency, or

subject matter of an application for patent, including status information, and

access to the application, will only be given to the public as set forth in §

1.11

or in this section.

(1) Records associated with patent applications (see paragraph

(g) of this section for international applications and paragraph (j) of this

section for international design applications) may be available in the

following situations:

of an application for patent, including status information, and

access to the application, will only be given to the public as set forth in §

1.11

or in this section.

(1) Records associated with patent applications (see paragraph

(g) of this section for international applications and paragraph (j) of this

section for international design applications) may be available in the

following situations:

(i)

Patented applications and statutory invention registrations.

The file of an application that has issued as a patent or

published as a statutory invention registration is available to the

public as set forth in §

1.11(a)

. A copy of

the patent application-as-filed, the file contents of the application,

or a specific document in the file of such an application may be

provided upon request and payment of the appropriate fee set forth in

1.19(b)

(ii)

Published abandoned applications.

The file of an

abandoned published application is available to the public as set

forth in §

1.11(a)

. A copy of

the application-as-filed, the file contents of the published

application, or a specific document in the file of the published

application may be provided to any person upon request and payment of

the appropriate fee set forth in §

1.19(b)

(iii)

Published pending applications.

A copy of the

application-as-filed, the file contents of the application, or a

specific document in the file of a pending published application may

be provided to any person upon request and payment of the appropriate

fee set forth in §

1.19(b)

. If a

redacted copy of the application was used for the patent application

publication, the copy of the specification, drawings, and papers may

be limited to a redacted copy. The Office will not provide access to

the paper file of a pending application that has been published,

except as provided in paragraph (c) or (i) of this section.

est and payment of the appropriate

fee set forth in §

1.19(b)

. If a

redacted copy of the application was used for the patent application

publication, the copy of the specification, drawings, and papers may

be limited to a redacted copy. The Office will not provide access to

the paper file of a pending application that has been published,

except as provided in paragraph (c) or (i) of this section.

(iv)

Unpublished abandoned applications (including provisional

applications) that are identified or relied upon.

The

file contents of an unpublished, abandoned application may be made

available to the public if the application is identified in a U.S.

patent, a statutory invention registration, a U.S. patent application

publication, an international publication of an international

application under

PCT Article

21(2)

, or a publication of an international

registration under Hague Agreement Article 10(3) of an international

design application designating the United States. An application is

considered to have been identified in a document, such as a patent,

when the application number or serial number and filing date, first

named inventor, title, and filing date or other application specific

information are provided in the text of the patent, but not when the

same identification is made in a paper in the file contents of the

patent and is not included in the printed patent. Also, the file

contents may be made available to the public, upon a written request,

if benefit of the abandoned application is claimed

under

35 U.S.C. 119(e)

120

121

365

, or

386(c)

in an

application that has issued as a U.S. patent, or has published as a

statutory invention registration, a U.S. patent application

publication, an international publication of an international

application under

PCT Article 21(2)

or a publication of an international registration under Hague

Agreement Article 10(3)

oned application is claimed

under

35 U.S.C. 119(e)

120

121

365

, or

386(c)

in an

application that has issued as a U.S. patent, or has published as a

statutory invention registration, a U.S. patent application

publication, an international publication of an international

application under

PCT Article 21(2)

or a publication of an international registration under Hague

Agreement Article 10(3). A copy of the application-as-filed, the file

contents of the application, or a specific document in the file of the

application may be provided to any person upon written request and

payment of the appropriate fee (§

1.19(b)

(v)

Unpublished pending applications (including provisional

applications) whose benefit is claimed.

A copy of the

file contents of an unpublished pending application may be provided to

any person, upon written request and payment of the appropriate fee (§

1.19(b)

), if the benefit of the application is

claimed under

35 U.S.C. 119(e)

120

121

365(c)

, or

386(c)

in an

application that has issued as a U.S. patent, or in an application

that has published as a statutory invention registration, a U.S.

patent application publication, an international publication of an

international application under

PCT Article 21(2)

or a publication of an international registration under Hague

Agreement Article 10(3). A copy of the application-as-filed or a

specific document in the file of the pending application may also be

provided to any person upon written request and payment of the

appropriate fee (§

1.19(b)

). The

Office will not provide access to the paper file of a pending

application, except as provided in paragraph (c) or (i) of this

section.

rnational registration under Hague

Agreement Article 10(3). A copy of the application-as-filed or a

specific document in the file of the pending application may also be

provided to any person upon written request and payment of the

appropriate fee (§

1.19(b)

). The

Office will not provide access to the paper file of a pending

application, except as provided in paragraph (c) or (i) of this

section.

(vi)

Unpublished pending applications (including provisional

applications) that are incorporated by reference or otherwise

identified.

A copy of the application as originally filed

of an unpublished pending application may be provided to any person,

upon written request and payment of the appropriate fee (§

1.19(b)

), if the application is incorporated by

reference or otherwise identified in a U.S. patent, a statutory

invention registration, a U.S. patent application publication, an

international publication of an international application

under

PCT Article

21(2)

, or a publication of an international

registration under Hague Agreement Article 10(3) of an international

design application designating the United States. The Office will not

provide access to the paper file of a pending application, except as

provided in paragraph (c) or (i) of this section.

(vii)

When a petition for access or a power to inspect is

required.

Applications that were not published or

patented, that are not the subject of a benefit claim

under

35 U.S.C. 119(e)

120

121

365

386(c)

in an

application that has issued as a U.S. patent, an application that has

published as a statutory invention registration, a U.S. patent

application publication, an international publication of an

international application under

PCT Article 21(2)

, or a publication of an international registration under Hague

Agreement Article 10(3), or are not identified in a U.S. patent, a

statutory invention registration, a U.S

hat has issued as a U.S. patent, an application that has

published as a statutory invention registration, a U.S. patent

application publication, an international publication of an

international application under

PCT Article 21(2)

, or a publication of an international registration under Hague

Agreement Article 10(3), or are not identified in a U.S. patent, a

statutory invention registration, a U.S. patent application

publication, an international publication of an international

application under

PCT Article

21(2)

, or a publication of an international

registration under Hague Agreement Article 10(3) of an international

design application designating the United States, are not available to

the public. If an application is identified in the file contents of

another application, but not the published patent application or

patent itself, a granted petition for access (see paragraph (i)) or a

power to inspect (see paragraph (c) of this section) is necessary to

obtain the application, or a copy of the application.

(2) Information concerning a patent application may be

communicated to the public if the patent application is identified in a

published patent document or in an application as set forth in paragraphs

(a)(1)(i) through (a)(1)(vi) of this section. The information that may be

communicated to the public (

i.e.,

status information)

includes:

(i) Whether the application is pending, abandoned, or

patented;

(ii) Whether the application has been published under

35 U.S.C. 122(b)

;

(iii) The application “numerical identifier” which may be:

(A) The eight-digit application number (the two-digit

series code plus the six-digit serial number); or

(B) The six-digit serial number plus any one of the

filing date of the national application, the international

filing date, or date of entry into the national stage; and

Whether the application has been published under

35 U.S.C. 122(b)

;

(iii) The application “numerical identifier” which may be:

(A) The eight-digit application number (the two-digit

series code plus the six-digit serial number); or

(B) The six-digit serial number plus any one of the

filing date of the national application, the international

filing date, or date of entry into the national stage; and

(iv) Whether another application claims the benefit of the

application (

i.e.,

whether there are any

applications that claim the benefit of the filing date under

35 U.S.C. 119(e)

120

121

365

, or

386

of the application), and if there are any

such applications, the numerical identifier of the application, the

specified relationship between the applications

(

e.g.,

continuation), whether the application is

pending, abandoned or patented, and whether the application has been

published under

35 U.S.C. 122(b)

*****

ACCESS TO IMAGE FILE WRAPPER (IFW) APPLICATIONS

The Image File Wrapper (IFW) system uses image technology to replace the

paper processing of patent applications in the Office. Paper components of these

application files (including the specification, oath or declaration, drawings,

information disclosure statements, amendments, Office actions, and file jacket

notations) have been scanned to create electronic image files. For patent applications

in the IFW system, the IFW file is the Official file and no access is granted to the

original paper document sheets used to create the IFW file. All processing and

examination is conducted using the electronic images instead of the paper source

documents.

If an IFW file has been created for a patented

application, published application, or an application to which a patented or published

application claims domestic benefit, the IFW file (with the exception of non-patent

literature) is accessible through Patent Center. All patent applications filed after

June 30, 2003, have been scanned into the IFW system are available in Patent Center upon

publishing or patenting

has been created for a patented

application, published application, or an application to which a patented or published

application claims domestic benefit, the IFW file (with the exception of non-patent

literature) is accessible through Patent Center. All patent applications filed after

June 30, 2003, have been scanned into the IFW system are available in Patent Center upon

publishing or patenting. Pending applications filed before June 30, 2003, were scanned

into IFW as incoming papers were received in the Office.

II.

PUBLISHED APPLICATIONS

37 CFR 1.14 Patent applications preserved in confidence.

(a)

Confidentiality of patent application information.

Patent

applications that have not been published under

35 U.S.C.

122(b)

are generally preserved in confidence pursuant to

35 U.S.C.

122(a)

. Information concerning the filing, pendency, or

subject matter of an application for patent, including status information, and

access to the application, will only be given to the public as set forth in §

1.11

or in this section.

(1) Records associated with patent applications (see paragraph

(g) of this section for international applications and paragraph (j) of

this section for international design applications) may be available in

the following situations:

*****

(ii)

Published abandoned applications.

The file of an

abandoned published application is available to the public as set

forth in §

1.11(a)

. A copy

of the application-as-filed, the file contents of the published

application, or a specific document in the file of the published

application may be provided to any person upon request and payment

of the appropriate fee set forth in §

1.19(b)

*****

(ii)

Published abandoned applications.

The file of an

abandoned published application is available to the public as set

forth in §

1.11(a)

. A copy

of the application-as-filed, the file contents of the published

application, or a specific document in the file of the published

application may be provided to any person upon request and payment

of the appropriate fee set forth in §

1.19(b)

(iii)

Published pending applications.

A copy of the

application-as-filed, the file contents of the application, or a

specific document in the file of a pending published application

may be provided to any person upon request and payment of the

appropriate fee set forth in §

1.19(b)

. If a

redacted copy of the application was used for the patent

application publication, the copy of the specification, drawings,

and papers may be limited to a redacted copy. The Office will not

provide access to the paper file of a pending application that has

been published, except as provided in paragraph (c) or (i) of this

section.

*****

If a patent application has been published pursuant to

35 U.S.C. 122(b)

then a copy of the specification, drawings, and all papers relating to the file of that

published application (whether abandoned or pending) may be provided to any person upon

written request and payment of the fee set forth in

37 CFR 1.19(b)

. See

37 CFR

1.14(a)(1)(ii) and (iii)

. Pursuant to

35 U.S.C. 374

and

U.S.C. 390

, the publication by the International Bureau of an

international application under the PCT or an international design application

designating the United States under the Hague Agreement is deemed to be a publication

under

35 U.S.C.

122(b)

. Note that the U.S. is automatically designated in all

international applications under the PCT filed on or after January 1, 2004.

If a redacted copy of the application was used for the

patent application publication, the copy of the application will be limited to the

redacted copy of the application and the redacted materials provided under

37 CFR

1.217(d)

e a publication

under

35 U.S.C.

122(b)

. Note that the U.S. is automatically designated in all

international applications under the PCT filed on or after January 1, 2004.

If a redacted copy of the application was used for the

patent application publication, the copy of the application will be limited to the

redacted copy of the application and the redacted materials provided under

37 CFR

1.217(d)

See paragraph I., above, for information pertaining to access to Image

File Wrapper (IFW) applications. Published applications maintained in the IFW system are

available on the USPTO website in Patent Center. If the published patent application is

pending and it is not maintained in the IFW system, the paper application file itself

will not be available to the public for inspection. Only copies of the application file

may be obtained pursuant to

37 CFR 1.14(a)(1)(iii)

. If the

published patent application is abandoned, the entire application is available to the

public for inspection and obtaining copies. See

37 CFR 1.11(a)

III.

UNPUBLISHED ABANDONED AND PENDING APPLICATIONS (INCLUDING PROVISIONAL

APPLICATIONS) THAT ARE IDENTIFIED

37 CFR 1.14 Patent applications preserved in confidence.

(a)

Confidentiality of patent application information.

Patent

applications that have not been published under

35 U.S.C.

122(b)

are generally preserved in confidence pursuant to

35 U.S.C.

122(a)

. Information concerning the filing, pendency, or

subject matter of an application for patent, including status information, and

access to the application, will only be given to the public as set forth in §

1.11

or in this section.

(1) Records associated with patent applications (see paragraph

been published under

35 U.S.C.

122(b)

are generally preserved in confidence pursuant to

35 U.S.C.

122(a)

. Information concerning the filing, pendency, or

subject matter of an application for patent, including status information, and

access to the application, will only be given to the public as set forth in §

1.11

or in this section.

(1) Records associated with patent applications (see paragraph

(g) of this section for international applications and paragraph (j) of

this section for international design applications) may be available in

the following situations:

*****

(iv)

Unpublished abandoned applications (including provisional

applications) that are identified or relied upon.

The

file contents of an unpublished, abandoned application may be made

available to the public if the application is identified in a U.S.

patent, a statutory invention registration, a U.S. patent

application publication, an international publication of an

international application under

PCT Article

21(2)

, or a publication of an international

registration under Hague Agreement Article 10(3) of an

international design application designating the United States. An

application is considered to have been identified in a document,

such as a patent, when the application number or serial number and

filing date, first named inventor, title, and filing date or other

application specific information are provided in the text of the

patent, but not when the same identification is made in a paper in

the file contents of the patent and is not included in the printed

patent. Also, the file contents may be made available to the

public, upon a written request, if benefit of the abandoned

application is claimed under

35 U.S.C.

119(e)

120

121

365

, or

386(c)

in an

application that has issued as a U.S. patent, or has published as a

statutory invention registration, a U.S

is made in a paper in

the file contents of the patent and is not included in the printed

patent. Also, the file contents may be made available to the

public, upon a written request, if benefit of the abandoned

application is claimed under

35 U.S.C.

119(e)

120

121

365

, or

386(c)

in an

application that has issued as a U.S. patent, or has published as a

statutory invention registration, a U.S. patent application

publication, an international publication of an international

application under

PCT Article

21(2)

, or a publication of an international

registration under Hague Agreement Article 10(3). A copy of the

application-as-filed, the file contents of the application, or a

specific document in the file of the application may be provided to

any person upon written request and payment of the appropriate fee

(§

1.19(b)

(v)

Unpublished pending applications (including provisional

applications) whose benefit is claimed.

A copy of the

file contents of an unpublished pending application may be provided

to any person, upon written request and payment of the appropriate

fee (§

1.19(b)

), if

the benefit of the application is claimed under

35 U.S.C.

119(e)

120

121

365(c)

, or

386(c)

in an

application that has issued as a U.S. patent, or in an application

that has published as a statutory invention registration, a U.S.

patent application publication, an international publication of an

international application under

PCT Article

21(2)

, or a publication of an international

registration under Hague Agreement Article 10(3). A copy of the

application-as-filed or a specific document in the file of the

pending application may also be provided to any person upon written

request and payment of the appropriate fee (§

1.19(b)

). The Office will not provide access

to the paper file of a pending application, except as provided in

paragraph (c) or (i) of this section.

rnational

registration under Hague Agreement Article 10(3). A copy of the

application-as-filed or a specific document in the file of the

pending application may also be provided to any person upon written

request and payment of the appropriate fee (§

1.19(b)

). The Office will not provide access

to the paper file of a pending application, except as provided in

paragraph (c) or (i) of this section.

(vi)

Unpublished pending applications (including provisional

applications) that are incorporated by reference or otherwise

identified.

A copy of the application as originally

filed of an unpublished pending application may be provided to any

person, upon written request and payment of the appropriate fee (§

1.19(b)

), if

the application is incorporated by reference or otherwise

identified in a U.S. patent, a statutory invention registration, a

U.S. patent application publication, an international publication

of an international application under

PCT Article

21(2)

, or a publication of an international

registration under Hague Agreement Article 10(3) of an

international design application designating the United States. The

Office will not provide access to the paper file of a pending

application, except as provided in paragraph (c) or (i) of this

section.

*****

Abandoned applications meeting the requirements of

37 CFR

1.14(a)(1)(iv)

and any application that is open to the public

under

37 CFR

1.11

may be obtained by any person through the Patent and

Trademark Copy Fulfillment Branch’s Certified Copy Center (CCC). The following abandoned

applications are available: (A) An abandoned application referred to in a U.S. patent

application publication or U.S. patent; and (B) a pending File Wrapper Continuation

application (FWC) filed under former

37 CFR 1.62

of an abandoned

application that meets the requirements of

37 CFR 1.14(a)(1)(iv)

Patent and

Trademark Copy Fulfillment Branch’s Certified Copy Center (CCC). The following abandoned

applications are available: (A) An abandoned application referred to in a U.S. patent

application publication or U.S. patent; and (B) a pending File Wrapper Continuation

application (FWC) filed under former

37 CFR 1.62

of an abandoned

application that meets the requirements of

37 CFR 1.14(a)(1)(iv)

. Under former

37 CFR

1.62(f)

, where access is permitted to an application within the

file wrapper of a FWC application, the applicant has waived the right to keep all

earlier filed applications in the same file wrapper in confidence.

37 CFR

1.14(a)(1)(i)

relates only to United States applications that are

open to public inspection. See

37 CFR 1.14(g)(3)-(5)

for access to

international applications where the U.S. is designated. See also

MPEP § 110

. See

37 CFR

1.14(j)

for access to international design applications. If an

abandoned application is referred to in an international publication of an international

application under

PCT

Article 21(2)

, or in a publication of an international

registration under Hague Agreement Article 10(3), access to the abandoned application is

available under

37 CFR

1.14(a)(1)(iv)

An abandoned non-IFW application identified in a U.S. patent application

publication, U.S. patent or a U.S. application that is open to public inspection may be

ordered for inspection by any member of the public through the Patent and Trademark Copy

Fulfillment Branch’s Certified Copy Center (CCC).

The incorporation by reference of a pending application in a U.S. patent

application publication, a U.S. patent, a published international application published

in accordance with

PCT

Article 21(2)

, a publication of an international registration

under Hague Agreement Article 10(3), or a statutory invention registration constitutes a

special circumstance under

35 U.S.C. 122

warranting that a copy

of the application-as-filed be provided upon written request as provided in

37 CFR

1.14(a)(1)(vi)

. In addition, if a U.S

hed international application published

in accordance with

PCT

Article 21(2)

, a publication of an international registration

under Hague Agreement Article 10(3), or a statutory invention registration constitutes a

special circumstance under

35 U.S.C. 122

warranting that a copy

of the application-as-filed be provided upon written request as provided in

37 CFR

1.14(a)(1)(vi)

. In addition, if a U.S. patent application

publication, a U.S. patent, a published international application, or a published

international registration claims benefit under

35 U.S.C. 119(e)

120

121

365

, or

386

to a

U.S. patent application, a copy of that application-as-filed may be provided upon

written request (see

37 CFR 1.14(a)(1)(v)

), or be available through Patent Center if

the application is maintained in the IFW system. A benefit claim in an international

design application that does not designate the United States is not a claim under

35 U.S.C.

119(e)

120

121

365

386

. The written request, including

a copy of the page of the patent application publication, U.S. patent, published

international application, or published international registration including the

incorporation by reference or specific reference under

35 U.S.C. 119(e)

120

121

365

, or

386

and the requisite fee set forth in

37 CFR 1.19(b)(1)

should be directed to the Patent and Trademark Copy Fulfillment Branch of the Public

Records Division. However, an incorporation by reference that is made as part of a

transmittal letter for the application, or that is a part of the text of the application

that has been canceled and which does not appear as part of the printed patent, may not

be relied upon to obtain a copy of the application as originally filed. A petition for

access with an explanation of special circumstances other than the not-printed

incorporation by reference will be required. See

37 CFR 1.14(a)(1)(vii)

ter for the application, or that is a part of the text of the application

that has been canceled and which does not appear as part of the printed patent, may not

be relied upon to obtain a copy of the application as originally filed. A petition for

access with an explanation of special circumstances other than the not-printed

incorporation by reference will be required. See

37 CFR 1.14(a)(1)(vii)

Copies of a patent application-as-filed and the contents of a patent

application file wrapper may be ordered on-line or requested by facsimile from the

Patent and Trademark Copy Fulfillment Branch. Payment of the appropriate fee

under

37 CFR

1.19(b)

may be made by USPTO Deposit Account, American Express®,

Discover®, MasterCard®, or Visa® by any person having a right to access to the

originally filed application or patent. The Office does not provide for access to

non-United States applications.

Form PTO/SB/68 may be used to request access, which is available at

www.uspto.gov

IV.

ACCESS WHERE PART OF AN APPLICATION IS INCORPORATED BY REFERENCE IN A U.S. PATENT

APPLICATION PUBLICATION OR A U.S. PATENT

37 CFR

1.14(a)(1)(vi)

permits a member of the public, without a petition

for access, to obtain a copy of a pending application as originally filed, when the

application is incorporated by reference in a U.S. patent application publication or a

U.S. patent, upon the filing of an appropriate request and the payment of the required

fee. However, if only part of the application is incorporated by reference, for example,

where an application states, “the disclosure of a valve on page 5, lines 5-35, of

application No. XX/YYY,YYY, is hereby incorporated by reference,” then a petition for

access is required to obtain access to or a copy of the incorporated material.

Incorporation by reference of part of an application in a U.S. patent application

publication or a U.S. patent constitutes a special circumstances under

35 U.S.C

application states, “the disclosure of a valve on page 5, lines 5-35, of

application No. XX/YYY,YYY, is hereby incorporated by reference,” then a petition for

access is required to obtain access to or a copy of the incorporated material.

Incorporation by reference of part of an application in a U.S. patent application

publication or a U.S. patent constitutes a special circumstances under

35 U.S.C. 122(a)

warranting that access to that part of the original disclosure of the application be

granted on petition. The incorporation by reference will be interpreted as a waiver of

confidentiality of only that part of the original disclosure as filed, and not the

entire application file.

In re Gallo,

231 USPQ 496 (Comm’r Pat.

1986). If applicant objects to access to the entire application file, applicant must

file two copies of the information incorporated by reference along with the objection.

In the example given, applicant would be required to provide two copies of page 5, lines

5-35 of the XX/YYY,YYY application. Failure to provide the material within the time

period provided will result in the entire application content (including prosecution

history) being made available to the petitioner. The Office will not attempt to separate

the noted materials from the remainder of the application. Compare

In re Marsh

Eng’g. Co.,

1913 C.D. 183 (Comm’r Pat. 1913).

PETITION FOR ACCESS BY THIRD PARTY

37 CFR 1.14 Patent applications preserved in confidence.

(a)

Confidentiality of patent application information.

Patent

applications that have not been published under

35 U.S.C.

122(b)

are generally preserved in confidence pursuant to

35 U.S.C.

122(a)

. Information concerning the filing, pendency, or

subject matter of an application for patent, including status information, and

access to the application, will only be given to the public as set forth in §

1.11

or in this section.

(1) Records associated with patent applications (see paragraph

been published under

35 U.S.C.

122(b)

are generally preserved in confidence pursuant to

35 U.S.C.

122(a)

. Information concerning the filing, pendency, or

subject matter of an application for patent, including status information, and

access to the application, will only be given to the public as set forth in §

1.11

or in this section.

(1) Records associated with patent applications (see paragraph

(g) of this section for international applications and paragraph (j) of

this section for international design applications) may be available in

the following situations:

*****

(vii)

When a petition for access or a power to inspect is

required.

Applications that were not published or

patented, that are not the subject of a benefit claim

under

35 U.S.C.

119(e)

120

121

365(c)

, or

386(c)

in an

application that has issued as a U.S. patent, an application that

has published as a statutory invention registration, a U.S. patent

application publication, an international publication of an

international application under

PCT Article

21(2)

, or a publication of an international

registration under Hague Agreement Article 10(3), or are not

identified in a U.S. patent, a statutory invention registration, a

U.S. patent application publication, an international publication

of an international application under

PCT Article

21(2)

, or a publication of an international

registration under Hague Agreement Article 10(3) of an

international design application designating the United States, are

not available to the public. If an application is identified in the

file contents of another application, but not the published patent

application or patent itself, a granted petition for access (see

paragraph (i)) or a power to inspect (see paragraph (c) of this

section) is necessary to obtain the application, or a copy of the

application.

*****

sign application designating the United States, are

not available to the public. If an application is identified in the

file contents of another application, but not the published patent

application or patent itself, a granted petition for access (see

paragraph (i)) or a power to inspect (see paragraph (c) of this

section) is necessary to obtain the application, or a copy of the

application.

*****

(i)

Access or copies in other circumstances.

The Office, either

sua sponte

or on petition, may also provide access or

copies of all or part of an application if necessary to carry out an Act of

Congress or if warranted by other special circumstances. Any petition by a

member of the public seeking access to, or copies of, all or part of any

pending or abandoned application preserved in confidence pursuant to paragraph

(a) of this section, or any related papers, must include:

(1) The fee set forth in §

1.17(g)

; and

(2) A showing that access to the application is necessary to

carry out an Act of Congress or that special circumstances exist which

warrant petitioner being granted access to all or part of the

application.

*****

Any interested party may file a petition, accompanied by the petition

fee, to the Director for access to an application. Inasmuch as the post office address

is necessary for the complete identification of the petitioner, it should always be

included complete with ZIP Code number. In addition, telephone and facsimile numbers

should be provided to expedite handling of the petition. Petitions for access are

handled in the Office of Patent Legal Administration, unless the application is involved

in an interference, derivation proceeding, or trial before the Patent Trial and Appeal

Board. See

MPEP §

1002.02(b)

, item 21

t should always be

included complete with ZIP Code number. In addition, telephone and facsimile numbers

should be provided to expedite handling of the petition. Petitions for access are

handled in the Office of Patent Legal Administration, unless the application is involved

in an interference, derivation proceeding, or trial before the Patent Trial and Appeal

Board. See

MPEP §

1002.02(b)

, item 21.

The petition may be filed either with proof of service of copy upon the

inventor, applicant in an application filed on or after September 16, 2012, assignee of

record, or attorney or agent of record in the application to which access is sought, or

the petition may be filed in duplicate, in which case the duplicate copy will be sent by

the Office to the inventor, applicant in an application filed on or after September 16,

2012, assignee of record, or attorney or agent of record in the application (hereinafter

“applicant”). A separate petition, with fee, must be filed for each application file to

which access is desired. Each petition should show not only why access is desired, but

also why petitioner believes they are entitled to access. The applicant will normally be

given a limited period such as 3 weeks within which to state any objection to the

granting of the petition for access and reasons why it should be denied. If applicant

states that they have no objection to the requested access, the petition will be

granted. If objection is raised or applicant does not respond, the petition will be

decided on the record. If access is granted to the application, any objections filed by

the applicant will be available to the petitioner since these papers are in the

application file. If access to the application is denied, petitioner will not receive

copies of any objections filed by the applicant. A determination will be made whether

“special circumstances” are present which warrant a grant of access under

35 U.S.C.

122

cess is granted to the application, any objections filed by

the applicant will be available to the petitioner since these papers are in the

application file. If access to the application is denied, petitioner will not receive

copies of any objections filed by the applicant. A determination will be made whether

“special circumstances” are present which warrant a grant of access under

35 U.S.C.

122

. See below when the application is the basis of a claim for

benefit of an earlier filing date under

35 U.S.C. 120

or part of the

application is incorporated by reference in a United States patent. “Special

circumstances” could be found where an applicant has relied upon the applicant's

application as a means to interfere with a competitor’s business or customers. See,

e.g.,

In re Crossman,

187 USPQ 367 (PTO Solicitor 1975); and

In re Trimless Cabinets,

128 USPQ 95 (Comm’r Pat. 1960).

Furthermore, “special circumstances” could be found where an attorney or agent of record

in an application in which a provisional double patenting rejection is made does not

have power of attorney in the copending application having a common assignee or

inventor. However, a more expeditious means of obtaining access would be to obtain power

to inspect from an assignee or inventor. See

MPEP §§ 104

and

106.01

VI.

ACCESS WHERE PATENT CLAIMS

35 U.S.C. 119(e)

120

121

365(c)

, or

386(c)

BENEFIT