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203    Status of Applications [R-11.2013]

203.01   New [R-11.2013]

A “new” application is a nonprovisional application that has not yet received an action by the examiner. An amendment filed prior to the first Office Action does not alter the status of a “new” application. Note that a request for continued examination (RCE)(see 37 CFR 1.114) is not a type of new application filing. See MPEP § 706.07(h).

203.02   Rejected [R-08.2012]

A nonprovisional application which, during its prosecution in the examining group and before allowance, contains an unanswered examiner’s action is designated as a “rejected” application. Its status as a “rejected” application continues as such until acted upon by the applicant in reply to the examiner’s action (within the allotted reply period), or until it becomes abandoned.

203.03   Amended [R-08.2012]

An “amended” nonprovisional application is one that having been acted on by the examiner, has in turn been acted on by the applicant in reply to the examiner’s action. The applicant’s reply may be confined to an election, a traverse of the action taken by the examiner or may include an amendment of the application.

203.04   Allowed or in Issue [R-11.2013]

An “allowed” nonprovisional application or an application “in issue” is one which, having been examined, is passed to issue as a patent, subject to payment of the issue fee. Its status as an “allowed” application continues from the date of the notice of allowance until it is withdrawn from issue or until it issues as a patent or becomes abandoned, as provided in 37 CFR 1.316.

203.05   Abandoned [R-11.2013]

An abandoned application is, inter alia, one which is removed from the Office docket of pending applications:

  • (A) through formal abandonment by the applicant or by the attorney or agent of record;
  • (B) through failure of applicant to take appropriate action at some stage in the prosecution of a nonprovisional application;
  • (C) for failure to pay the issue fee (MPEP § 711to § 711.05); or
  • (D) in the case of a provisional application, no later than 12 months after the filing date of the provisional application (see MPEP § 711.03(c) and 35 U.S.C. 111(b)(5)).

203.06   Incomplete [R-08.2012]

An application that is not entitled to a filing date (e.g., for lacking some of the essential parts) is termed an incomplete application. (MPEP § 506 and § 601.01(d)-(g)).

203.07   [Reserved] [R-]

203.08   Status Inquiries [R-11.2013]

I.   IN GENERAL

Status information relating to patent applications is available through the Patent Application Information Retrieval (PAIR) system. There is both a public and private interface to PAIR. In public PAIR, information is available relating to issued patents, published patent applications, and applications to which a patented or published application claims domestic priority. In private PAIR, an applicant (or his or her registered patent attorney or registered patent agent) can securely track the progress of his or her application(s) through the USPTO. Private PAIR makes available information relating to unpublished patent applications, but the applicant must associate a Customer Number with the application to obtain access. See MPEP § 403 for Customer Number practice.

Applicants and other persons seeking status information regarding an application should check the PAIR system on the Office Web site at http://www.uspto.gov/ebc. Alternatively, the requester may contact the File Information Unit (see MPEP § 1730). The File Information Unit (FIU) will check the relevant Office records and will inform the requester whether the application has been published or has issued as a patent. If the application has been published, the FIU will inform the requester of the publication number and publication date, and if the application has issued as a patent, the FIU will inform the requester of the patent number, issue date and classification. If the application has not been published, but is pending or abandoned then the FIU determines whether the requester is entitled to such information. See MPEP § 102 for additional information.

Inquiries as to the status of applications, by persons entitled to the information, should be answered promptly. Simple letters of inquiry regarding the status of applications will be transmitted from the Office of Patent Application Processing to the TCs for direct action. Such letters will be stamped “Status Letters.”

If the correspondent is not entitled to the information, in view of 37 CFR 1.14, he or she should be so informed.

For Congressional and other official inquiries, see MPEP § 203.08(a).

II.   NEW APPLICATION

A Notice of Allowability, Form PTOL-37, is routinely mailed in every application determined to be allowable. Thus, the mailing of a form PTOL-37 in addition to a formal Notice of Allowance and Fee(s) Due (PTOL-85) in all allowed applications would seem to obviate the need for status inquiries even as a precautionary measure where the applicant may believe his or her new application may have been passed to issue on the first examination. However, as an exception, a status inquiry would be appropriate where a Notice of Allowance (PTOL-85) is not received within three months from receipt of form PTOL-37.

Current examining procedures aim to minimize the spread in dates among the various examiner dockets of each art unit and TC with respect to actions on new applications. Accordingly, the dates of the “oldest new applications” appearing in the Official Gazette are fairly reliable guides as to the expected time frames of when the examiners reach the applications or action.

III.   AMENDED APPLICATIONS

Amended applications are expected to be taken up by the examiner and an action completed within two months of the date the examiner receives the application. Accordingly, a status inquiry is not in order after reply by the attorney until 5 or 6 months have elapsed with no response from the Office. However, in the event that a six month period has elapsed, and no response from the Office is received, applicant should inquire as to the status of the application to avoid potential abandonment.

Applicants are encouraged to use PAIR to make status inquiries. See subsection I, above. A stamped postcard receipt or Electronic Acknowledgement Receipt for replies to Office actions, adequately and specifically identifying the papers filed, will be considered prima facie proof of receipt of such papers. See MPEP § 503. Where such proof indicates the timely filing of a reply, the submission of a copy of the postcard or Electronic Acknowledgement Receipt with a copy of the reply will ordinarily obviate the need for a petition to revive. Proof of receipt of a timely reply to a final action will obviate the need for a petition to revive only if the reply was in compliance with 37 CFR 1.113.

203.08(a)   Congressional and Other Official Inquiries

Correspondence and inquiries from the White House, Members of Congress, embassies, and heads of Executive departments and agencies normally are cleared by the USPTO’s Office of Policy and External Affairs and/or the Office of Governmental Affairs.

Inquiries referred to in this section such as correspondence from embassies, the Office of the U.S. Trade Representative, and the Department of State should immediately be transmitted to the Administrator of the Office of Policy and External Affairs, and a staff member of that office should be notified by phone that such correspondence has been received at 571-272-9300. Inquiries referred to in this section such as correspondence from Congress or the White House should immediately be transmitted to the Director of the Office of Governmental Affairs, and a staff member of that office should be notified by phone that such correspondence has been received at 571-272-7300.

This procedure is used so that there will be uniformity in the handling of contacts from the indicated sources, and also so that compliance with directives of the Department of Commerce is attained.

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Last Modified: 03/27/2014 10:10:33