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Third-Party Submission of Information During Patent Prosecution

Kevin J Mack

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As an agency within the Department of Commerce, the United States Patent and Trademark Office conducts ex parte examinations of patent applications and issues patents after applicants satisfy the statutory requirements for patent protection. Because the patent prosecution process is ex parte, third-parties may not generally interfere with an applicant's attempt to secure patent protection by submitting information allegedly materiality to patentability during patent prosecution. Rule 99 submission and protests, however, are two notable exception to this general rule of no third party interference.

Rule 99 Submissions

Pursuant to 37 C. F. R. § 1.99 ("Rule 99"), competitors and other interested third parties may submit publications to the Patent Office for consideration during examination after the PTO publishes a patent application. Presently, in accordance with the ex parte examination procedure, the Patent Office preserves pending applications in confidence until publication. Although Rule 99 may, in theory, permit competitors and other interested third parties to submit relevant information to the PTO, the procedure is limited in three respects. First, a third party must submit a list of publications for consideration by the Patent Office within two months from the date of application publication. Second, a third-party submission may not include an explanation describing the relevant aspects of the list of publications. Finally, the procedure permits the submission of only printed publications. Accordingly, the quality of information submitted under the third-party submission procedure is relatively low. In addition to third-party submissions under Rule 99, third parties may file a protest with the PTO to submit information adverse to a pending patent application.


Unlike third-party submissions, protests require a concise explanation of the relevance of each item the protestor submits. In addition, a protest is not limited to printed publications; the protestor may submit any relevant information to the USPTO. Accordingly, the quality of information submitted to the Patent Office in a protest is relatively high; however, a protestor must file a protest prior to the date the PTO publishes the application or issues a notice of allowance, whichever occurs first. Thus, the feasibility of competitors becoming aware of a pending patent application to file a protest is relatively low because the USPTO preserves pending applications in confidence until publication.

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Copyright © 2008 Kevin J Mack


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