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37 CFR Part 1 - Changes to Implement the Prioritized Examination Track (Track I) of the Enhanced Examination Timing Control Procedures; Final Rule, United States of America

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Repealed Text 
Details Details Year of Version 2011 Dates Entry into force: May 4, 2011 Adopted: March 23, 2011 Type of Text Implementing Rules/Regulations Subject Matter Patents (Inventions), IP Regulatory Body

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Main text(s) Main text(s) English 37 CFR Part 1 - Changes to Implement the Prioritized Examination Track (Track I) of the Enhanced Examination Timing Control Procedures; Final Rule        

 

Changes To Implement the Prioritized Examination Track (Track I) of the Enhanced Examination Timing Control Procedures

                            DEPARTMENT OF COMMERCE

                          Patent and Trademark Office

                                 37 CFR Part 1

                         [Docket No.: PTO-P-2010-0092]

                                 RIN 0651-AC52

 

                           Changes To Implement the

                Prioritized Examination Track (Track I) of the

                Enhanced Examination Timing Control Procedures

 

AGENCY: United States Patent and Trademark Office, Commerce.

 

ACTION: Final rule.

 

SUMMARY: The United States Patent and Trademark Office (Office) is revising

the rules of practice in patent cases to implement a procedure under which

applicants may request prioritized examination at the time of filing of an

application upon payment of appropriate fees and compliance with certain

requirements. In June of 2010, the Office requested comments on a proposal

to provide applicants with greater control over when their utility and plant

applications are examined and to promote greater efficiency in the patent

examination process (3-Track). The Office, in addition to requesting written

comments, conducted a public meeting to collect input from the public. The

vast majority of public comments and input that the Office received were

supportive of the prioritized examination track (Track I) portion of the

3-Track proposal. While the Office is in the process of considering and

revising the other portions of the 3-Track proposal in view of the public

comments and input, the Office wishes to implement the prioritized

examination track (Track I) now to provide the procedure for prioritized

examination to applicants as quickly as possible. In February of 2011, the

Office published a notice of proposed rule making to set forth the proposed

procedure for prioritized examination and to seek public comments on the

proposed procedure. The Office considered the public comments and revised the

proposed procedure in view of the public comments. The Office, in this final

rule, is revising the rules of practice to implement the optional procedure

for prioritized examination. The aggregate goal for processing applications

under prioritized examination is to provide a final disposition within twelve

months of prioritized status being granted. The Office is initially limiting

requests for prioritized examination to a maximum of 10,000 applications

during the remainder of fiscal year 2011.

 

DATES: Effective Date: The changes set forth in this rule are effective

May 4, 2011. Applicability date: A request for prioritized examination may

be submitted with any original utility or plant application filed on or after

May 4, 2011.

 

FOR FURTHER INFORMATION CONTACT: Eugenia A. Jones, Kathleen Kahler Fonda, or

Michael T. Cygan, Office of Patent Legal Administration, Office of the

Associate Commissioner for Patent Examination Policy, by telephone at

(571) 272-7727, (571) 272-7754 or (571) 272-7700, or by mail addressed to:

Mail Stop Comments Patents, Commissioner for Patents, P.O. Box 1450,

Alexandria, VA 22313-1450, marked to the attention of Eugenia A. Jones.

 

SUPPLEMENTARY INFORMATION: In June 2010, the Office requested comments from

the public on a proposal to provide applicants with greater control over when

their original utility or plant applications are examined and promote work

sharing between intellectual property offices (3-Track). See Enhanced

Examination Timing Control Initiative; Notice of Public Meeting, 75 FR 31763

(June 4, 2010), 1355 Off. Gaz. Pat. Office 323 (June 29, 2010). Specifically,

the Office proposed to implement procedures under which an applicant would be

able to: (1) Request prioritized examination of an original utility or plant

nonprovisional application (Track I); (2) request a delay in docketing the

application for examination by filing a request for delay in payment of the

search fee, the examination fee, the claims fees and the surcharge (if

appropriate) for a maximum period not to exceed thirty months in an original

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utility or plant application filed under 35 U.S.C. 111(a) (Track III); or

(3) obtain processing under the current examination procedure (Track II) by

not requesting either Track I or Track III processing. The Office, in

addition to requesting written comments, conducted a public meeting to

collect input from the public. The vast majority of public comments and input

that the Office received was supportive of the prioritized examination track

(Track I) portion of the 3-Track proposal. While the Office is in the process

of considering and revising the Track III proposal (a request for a delay

in docketing the application for examination) in view of the public comments

and input, the Office wishes to implement the prioritized examination track

(Track I) now to provide the optional procedure for prioritized examination

to applicants as quickly as possible.

 

   In February of 2011, the Office published a notice of proposed rule making

to set forth the proposed procedure for prioritized examination and to seek

public comments on the proposed procedure. See Changes to Implement the

Prioritized Examination Track (Track I) of the Enhanced Examination Timing

Control Procedures, 76 FR 6369 (Feb. 4, 2011), 1364 Off. Gaz. Pat. Office 50

(March 1, 2011). The Office proposed, among other changes, a fee for filing a

request for prioritized examination under 37 CFR 1.102(e) in the amount of

$4,000, in addition to filing fees for the application. Since the majority of

the public comments supported the optional prioritized examination procedure,

the Office is adopting the proposed procedure for prioritized examination

(Track I).

 

   The Office, in this final rule, is revising the rules of practice to

implement the optional procedure for prioritized examination. The aggregate

goal for processing applications under prioritized examination is to provide

a final disposition within twelve months of prioritized status being granted.

The Office is limiting requests for prioritized examination under 37 CFR

1.102(e) to a maximum of 10,000 applications during fiscal year 2011. The

Office will revisit this limit at the end of fiscal year 2011 to evaluate

what the appropriate maximum should be, if any, for future years.

 

   The fee for filing a request for prioritized examination under 37 CFR

1.102(e) is set at $4,000.00. The fees due on filing for an application for

which prioritized examination is being sought are the filing fees (including

any applicable excess claims and application size fees), the prioritized

examination fee, processing fee, and publication fee. Therefore, the fee

amount due on filing for a utility application for which prioritized

examination is being sought (not including any applicable excess claims and

application size fees) is $5,520 ($4,892 for a small entity): (1) The $1,090

($462 small entity) in filing fees which include the $330 ($82 small entity

filing by EFS-Web) basic filing fee, the $540 ($270 small entity) search fee,

and the $220 ($110 small entity) examination fee; (2) the $4,000 prioritized

examination fee; (3) the $130 processing fee; and (4) the $300 publication

fee.

 

   Under the Office's current statutory authority, the Office is not

permitted to reduce the prioritized examination fee for small entity

applicants. The Office indicated in the notice of proposed rule making that

if legislation is passed providing a fifty percent fee reduction for providing

prioritized examination for small entities under 35 U.S.C. 41(h)(1) and

providing that the prioritized examination fees be set to recover the

estimated cost of the prioritized examination program, the Office would set

the prioritized examination fee at $4800 ($2400 for small entities), since

27.8 percent of the new serialized utility and plant applications filed in

fiscal year 2010 were by small entities (based upon data from the Office's

Patent Application Locating and Monitoring (PALM) system). See Changes to

Implement the Prioritized Examination Track (Track I) of the Enhanced

Examination Timing Control Procedures, 76 FR at 6370, 1364 Off. Gaz. Pat.

Office at 51. Section 9(i) of the America Invents Act provides that "[t]he

Director shall reduce fees for providing prioritized examination of utility

and plant patent applications by 50 percent for small entities that qualify

for reduced fees under section 41(h)(1) of title 35, United States Code, so

long as the fees of the prioritized examination program are set to recover

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the estimated cost of the program," and § 9(j) of the America Invents Act

provides that this change is effective on the date of enactment of S. 23. See

S. 23, 112th Cong. (2011). S. 23 was passed by the United States Senate on

March 8, 2011. Neither S. 23 nor any other legislation, however, has been

enacted that provides fifty percent fee reduction for providing prioritized

examination under 37 CFR 1.102(e) for small entities. If S. 23 is enacted

into law, the fee for providing prioritized examination under 37 CFR 1.102(e)

will be $4,800 ($2,400 for small entities) and these fee amounts will be

applicable to any request for providing prioritized examination filed on or

or after the date of enactment of S. 23. Thus, if S. 23 or similar

legislation that provides a fifty percent fee reduction for prioritized

examination for small entities is enacted into law, the fee amount due on

filing for a utility application for which prioritized examination is being

sought (not including any applicable excess claims and application size fees)

is $6,320 ($3,292 for a small entity): (1) The $1,090 ($462 small entity) in

filing fees which include the $330 ($82 small entity filing by EFS-Web)

filing fee, the $540 ($270 small entity) search fee, and the $220 ($110 small

entity) examination fee; (2) the $4,800 ($2,400 small entity) prioritized

examination fee; (3) the $130 processing fee; and (4) the $300 publication

fee.

 

   Under prioritized examination, an application will be accorded special

status and placed on the examiner's special docket throughout its entire

course of prosecution before the examiner until a final disposition is

reached in the application. The aggregate goal for handling applications

under prioritized examination is to provide a final disposition within twelve

months of prioritized status being granted. The final disposition for the

twelve-month goal means: (1) Mailing of a notice of allowance, (2) mailing of

a final Office action, (3) filing of a notice of appeal, (4) declaration of

an interference by the Board of Patent Appeals and Interferences (BPAI),

(5) filing of a request for continued examination, or (6) abandonment of the

application, within twelve months from the date prioritized status has been

granted. An application under prioritized examination, however, would not be

accorded special status throughout its entire course of appeal or

interference before the BPAI, or after the filing of a request for continued

examination.

 

   Unlike the accelerated examination program, the time periods set in

Office actions for applications in Track I would be the same as set forth in

section 710.02(b) of the Manual of Patent Examining Procedure (MPEP) (8th ed.

2001) (Rev. 8, July 2010). In the event, however, an applicant files a

petition for an extension of time to file a reply, the prioritized

examination of the application will be terminated. In addition, filing a

request for a suspension of action or an amendment to the application which

results in more than four independent claims, more than thirty total claims,

or a multiple dependent claim, prioritized examination will terminate.

 

   To maximize the benefit of prioritized examination, applicants should

consider one or more of the following: (1) Acquiring a good knowledge of the

state of the prior art to be able to file the application with a clear

specification having a complete set of claims from the broadest to which the

applicant believes he is entitled in view of the state of the prior art to

the narrowest to which the applicant is willing to accept; (2) submitting an

application in condition for examination; (3) filing replies that are

completely responsive to the prior Office action and within the shortened

statutory period for reply set in the Office action; and (4) being prepared

to conduct interviews with the examiner. A description of what it means for

an application to be in condition for examination is provided at MPEP

§ 708.02(a) (subsection VIII.C).

 

   The requirements for requesting prioritized examination are summarized

below. A patent application may be granted prioritized examination status

under the following conditions:

 

     (1) The application must be a new original utility or plant

nonprovisional application filed under 35 U.S.C. 111(a) on or after May

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4, 2011, the effective date of this final rule. The procedure for

prioritized examination does not apply to international applications,

design applications, reissue applications, provisional applications,

and reexamination proceedings. Applicants may request prioritized

examination for a continuing application (e.g., a continuation or

divisional application) by filing a request and the required fees

including the $4,000 prioritized examination fee. However, a continuing

application will not automatically be given prioritized examination

status based on the request filed in the parent application. Each

continuing application must on its own meet all requirements for

prioritized examination under 37 CFR 1.102(e).

 

     (2) The application must be complete under 37 CFR 1.51(b) including

any excess claims fees paid on filing, and the application must be

filed via the Office's electronic filing system (EFS-Web) if it is a

utility application. Thus, the application must be filed with an oath

or declaration under 37 CFR 1.63, the basic filing fee, the search fee,

the examination fee, any excess claims fees, and any application size

fee.

 

     (3) The application must contain no more than four independent

claims and no more than thirty total claims. The application must not

contain any multiple dependent claims.

 

     (4) The request for prioritized examination must be filed with the

application in compliance with 37 CFR 1.102(e) accompanied by the

prioritized examination fee set forth in 37 CFR 1.17(c), the processing

fee set forth in 37 CFR 1.17(i), and the publication fee set forth in

37 CFR 1.18(d). Applicants are advised to use the certification and

request form PTO/SB/424 which is available on EFS-Web.

 

     (5) The request for prioritized examination may be accepted if the

requirements under 37 CFR 1.102(e) are satisfied and the limit for the

number of requests for the year has not been reached. The Office is

limiting requests for prioritized examination under 37 CFR 1.102(e) to

a maximum of 10,000 applications during fiscal year 2011. The Office

will revisit this limit at the end of fiscal year 2011 to evaluate what

the appropriate maximum should be, if any.

 

Discussion of Specific Rules

 

   Title 37 of the Code of Federal Regulations, Part 1, is proposed to

be amended as follows:

 

   Section 1.17: The Office is implementing a procedure for prioritized

examination (Track I) upon applicant's request and payment of a fee at the

time of filing of the application, without meeting the requirements of the

accelerated examination program (e.g., examination support document). See

§ 1.102(e). Section 1.17(c) is amended to set the fee for filing a request

for prioritized examination under § 1.102(e) at $4,000.00. Section 1.17(i)

is amended to add a reference for requesting prioritized examination of an

application under § 1.102(e).

 

   Section 1.102: Section 1.102 is revised to provide for the Track I

procedure in which applicant has the option to request prioritized

examination on the date the application is filed. Particularly, § 1.102(a)

is revised by adding a reference to paragraph (e) so that applications may

be advanced out of turn for examination or for further action upon filing a

request under § 1.102(e). Section 1.102(e) is added to set forth the

requirements for filing a request for prioritized examination, which provides

that a request for prioritized examination will not be granted unless:

(1) The application is an original utility or plant nonprovisional

application filed under 35 U.S.C. 111(a) that is complete as defined by

§ 1.51(b), with any fees due under § 1.16 (the filing fee, search fee,

examination fee, any applicable excess claims fee, and any applicable

application size fee) paid on filing; (2) the application is filed via the

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Office's electronic filing system (EFS-Web) if it is a utility application;

(3) the request for prioritized examination, including the prioritized

examination fee set forth in § 1.17(c), the processing fee set forth in

§ 1.17(i), and the publication fee set forth in § 1.18(d) are present upon

filing; and (4) the application contains or is amended to contain no more

than four independent claims, no more than thirty total claims, and no

multiple dependent claims. Because plant applications may not be filed via

EFS-Web, the Office will accept a request for prioritized examination in

paper when it accompanies the filing of a plant application.

 

   As discussed previously, a request for prioritized examination may be

accepted if the requirements under § 1.102(e) are satisfied and the limit for

the number of requests has not been reached. The Office is limiting requests

for prioritized examination under § 1.102(e) to a maximum of 10,000

applications during the remainder of fiscal year 2011. The Office will

revisit this limit at the end of fiscal year 2011 to evaluate what the

appropriate maximum should be, if any.

 

   Response to Comments: In February of 2011, the Office published a notice

of proposed rule making to set forth the proposed procedure for prioritized

examination and to invite the public to submit written  comments on the

proposed procedure by March 7, 2011. See Changes to Implement the Prioritized

Examination Track (Track I) of the Enhanced Examination Timing Control

Procedures, 76 FR 6369 (Feb. 4, 2011), 1364 Off. Gaz. Pat. Office 50 (March

1, 2011) (notice of proposed rule making). The Office received twelve written

comments from intellectual property organizations, industry, academic and

research institutions, individual patent practitioners and the general

public. The Office has considered all of the public comments that were

received by March 7, 2011. The comments germane to the changes set forth in

this notice for prioritized examination and the Office's responses to those

comments are provided below.

 

   Comment 1: A few comments indicated that the Track I proposal has merit,

but should be implemented and maintained only if the Office is permitted to

retain all the fee income generated by applicants seeking Track 1 status.

One comment believed it is premature for the Office to be implementing a

rule making that depends on increased spending authority, given the uncertain

status of the Office's budget. The comment was concerned that all fees

collected by the Office are still not made available to the agency in the

current fiscal year and Congress has not authorized a budget that would

permit the Office to retain any fees collected under the prioritized

examination program. One comment was concerned about the ability of the

Office to offer prioritized examination under the Track I program without

delaying examination of non-prioritized applications, particularly since the

Office will not have any additional resources to conduct prioritized

examination of Track I applications at least until it is able to hire and

train additional examiners, which it may not be able to do under current

budget and hiring restrictions.

   Response: Track I prioritized examination is being implemented as a

result of a discussion between the Office and its stakeholders, which has

included requests for written comments and a public meeting. The vast

majority of public input is supportive of prioritized examination, which is

designed to provide important benefits to the Office and its stakeholders,

including greater control to applicants as to when their utility and plant

applications are examined, and greater efficiency in the patent examination

process. In view of this widespread support, the Office wishes to implement

the procedure so as to provide the procedure to applicants as quickly as

possible. The President's Fiscal Year 2012 Budget Request for the Office

includes the revenue that is expected to be generated by the prioritized

examination program. The Office appreciates that implementation of the Track

I program could have an effect on the examination of non-prioritized

applications during fiscal year 2011 due to the current budget situation and

its impact on the Office's ability to hire new examiners, but any effect

should not extend into future fiscal years.

 

   Comment 2: One comment stated that the separate processing fee of $130

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under § 1.17(i) should be eliminated if already covered by the $4,000 fee set

by proposed § 1.17(c). If the processing fee is not covered, then for the

sake of clarity there should be one fee of $4,130 set by proposed § 1.17(c),

and the § 1.17(i) fee should be eliminated.

   Response: The processing fee is for processing the request for prioritized

examination, which is separate and apart from the prioritized examination

cost. The Office is tracking the fees separately and thus treating them as

two different fees.

 

   Comment 3: One comment stated that the publication fee under § 1.18(d)

should not be required from an applicant as an up-front fee because the

application might never publish or issue as a patent.

   Response: The publication fee under § 1.18(d) is being required as a

condition of the Track I program. If an applicant can make the certification

required by 35 U.S.C. 122(b)(2)(B)(i) and § 1.213(a), the applicant may

request nonpublication under 35 U.S.C. 122(b)(2)(B)(i) in an application in

which a request for prioritized examination is also being filed. However, the

publication fee is still required to be paid on filing of the application.

Applicant may file a nonpublication request upon filing of the application

and the nonpublication request may be rescinded at any time. Submission of

the publication fee set forth in § 1.18(d) at the time of filing will save

time and reduce costs for the Office. If the application is not published as

a patent application publication and the application issues as a patent, the

applicant may request a refund of the publication fee in accordance with MPEP

§ 1126.

 

   Comment 4: One comment requested clarification regarding whether the

publication fee under § 1.18(d) and the processing fee under § 1.17(i) were

required to be paid on filing to participate in the Track I program, or

whether the fees are only required if they are applicable. The comment

requested clarification regarding the nature of the processing fee and

questioned whether the processing fee was required only if early publication

was requested.

   Response: Both the publication fee under § 1.18(d) and the processing fee

under § 1.17(i) are required to be paid at the time of filing by any

applicant requesting prioritized examination under § 1.102(e). The processing

fee is for processing the request for prioritized examination. It is not a

fee for requesting early publication.

 

   Comment 5: A few comments indicated that the fee for prioritized

examination is too high. One comment stated that the fee should not exceed

patent application fees and thus should be less than one thousand dollars.

If the fee does significantly exceed patent application fees, then a greater

benefit should be given such as a three-month time period from the request

until the final examination result. One comment stated that the Office has

not explained whether it would cost $4,000 more to examine a prioritized

application than a regular application, or whether the fee is for the purpose

of supporting more examiners to examine all applications.

   Response: As stated in the notice of proposed rule making, the prioritized

examination fee is set based on the estimated average cost to the Office of

performing the service, per 35 U.S.C. 41(d)(2). A prioritized examination fee

that is less than one thousand dollars would not recover the full cost of the

necessary resources to increase the work output of the Office without

delaying non-prioritized applications. Based on the Office's experience with

other accelerated examination programs, the Office would not be able to

provide a final examination result within the suggested three-month time

period.

 

   Comment 6: Some comments appreciated the statutory limitation on applying

fee discounts for small entities, and the fact that such fees are used to

hire new examiners, but hoped that such discounts can be implemented in order

to make the use of Track I examination more achievable for academic, small

business, and other small entity applicants. One comment urged the Office to

continue seeking authority to apply small and micro entity fees to the

prioritized examination procedure.

   Response: The Office appreciates the benefits of the fee reductions

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currently available to small entities under 35 U.S.C. 41(h)(1), and will

continue to seek additional fee setting authority that will permit extension

of fee reduction to the prioritized examination fee. As noted in the notice

of proposed rule making, the Office has determined an alternate fee structure,

should fee reduction be extended to the Track I fee. Upon extension of fee

reduction to Track I prioritized examination, the Office would set the

prioritized examination fee at $2,400 for small entities, and $4,800 for

other entities, in accordance with cost recovery based upon fiscal year 2010

data indicating that 27.8 percent of new serialized utility and plant

applications were by small entities.

 

   Comment 7: A few comments indicated that the Track I proposal has merit,

but should be implemented and maintained only so long as the program does not

adversely impact other patent applicants. One comment was concerned that

prioritized examination would promote even further delays in the examination

of requests for continued examination since requests for continued

examination are currently placed on the examiner's "Special New" application

docket, but not eligible for prioritized examination.

   Response: The fee for prioritized examination has been calculated to

ensure recovery of the full cost of the resources necessary to handle Track I

applications without the need to divert resources from non-prioritized

applications. As discussed previously, the Office appreciates that

implementation of the Track I program could have an effect on the examination

of non-prioritized applications during fiscal year 2011 due to the current

budget situation and its impact on the Office's ability to hire new examiners,

but any effect should not extend into future fiscal years. The prioritized

examination program will not further delay the examination of requests for

continued examination. Examiners will still be responsible for acting on

requests for continued examination in the same time frame.

 

   Comment 8: The Office received three comments regarding restriction

requirements in Track I applications. The first comment suggested that

examiners should be instructed to make restriction requirements by phone

whenever possible and to invite a discussion of the restriction requirement

at the time it is made with a view to reaching a consensus with the applicant.

The second comment stated that Track I participants should be permitted to

traverse restriction requirements. The third comment stated that petitions

from restriction requirements in Track I cases should be handled

expeditiously such that if the petition ecision results in withdrawal of the

restriction requirement, the examiner is still able to reach final disposition

of the case within the twelve-month target.

   Response: Telephone restriction practice is encouraged whenever possible,

in accordance with MPEP § 812.01. An applicant who disagrees with a

requirement for restriction may traverse in accordance with § 1.143. An

applicant's decision to opt-in to prioritized examination has no bearing on

restriction practice. Although traversal of a restriction requirement will not

terminate the prioritized examination, the benefit to the applicant of a

quick examination will be enhanced if such traversals can be avoided.

Petitions from requirements for restriction are governed by § 1.144. To

ensure prompt consideration of any such petition, applicant should promptly

file the petition as soon as the restriction requirement has been made final.

 

   Comment 9: One comment stated that the Office should provide Track I

applicants with a notice as to whether or not Track I status has been granted

and the reasons for any denial of Track I status.

   Response: The Office will notify a Track I applicant of the grant or

dismissal of the request for prioritized examination of the application. If

the request is denied, the Office will state the reason.

 

   Comment 10: One comment suggested that the language "an original or

continuing utility * * * nonprovisional application" should be used in the

proposed § 1.102(e) rather than "an original utility * * * nonprovisional

application" in order to indicate that continuing applications (continuations,

divisionals, and continuations-in-part) with appropriate filing dates are

eligible for Track I. Another comment requested clarification regarding

whether continuing applications would qualify for prioritized examination and

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suggested a revision to proposed § 1.102(e) to exclude continuation or

divisional applications since it appeared the intent was to limit the rule to

first filed utility and plant applications.

   Response: The term "original" as used in the patent statute and rules means

any application that is not a reissue application. Original applications

include first filings as well as continuing applications. See MPEP

§ 201.04(a). Thus, the suggested revision to add a reference to "continuing"

applications would introduce a redundancy into the language of the rule.

Likewise, the suggested revision to exclude continuation and divisional

applications is not being adopted since the rule is applicable to continuing

applications.

 

   Comment 11: One comment stated that a request for prioritized examination

should be permitted when an international application enters the national

stage under 35 U.S.C. 371.

   Response: Because it is necessary to limit requests for prioritized

examination at least during the first year, applications entering the national

stage under 35 U.S.C. 371 are not eligible. The Office may reconsider this

decision in future years. An applicant who has filed an international

application may choose to participate in prioritized examination by filing a

by-pass continuation under 35 U.S.C. 111(a) rather than entering the national

stage under 35 U.S.C. 371.

 

   Comment 12: One comment stated that a request for prioritized examination

status should be permitted when a request for continued examination is filed

under § 1.114, regardless of whether a request for prioritized examination

was previously granted in the application. One comment stated that, in an

application already granted Track I status, upon filing a request for

continued examination the applicant should be given the opportunity to

continue the Track I status by the payment of an additional fee.

   Response: A request for continued examination is not a new application. In

accordance with § 1.114, an applicant cannot request continued examination of

an application until prosecution is closed. Furthermore, an application in

which a request for continued examination has been filed is placed on an

examiner's "Special New" docket. See Notice of Change to Docketing of Requests

for Continued Examination, 1348 Off. Gaz. Pat. Office 254 (November 10, 2009).

The application on this docket having the oldest effective filing date must

be taken up for action within two bi-weeks. Thus, when a proper request for

continued examination is filed, the application has already undergone

examination, and will continue to be treated in an expedited manner relative

to new non-continuing applications, but not under the provisions for

prioritized examination.

 

   Comment 13: One comment indicated that unexamined applications with the

greatest pendency should be given preferential access to the Track I program.

   Response: The Office has undertaken an initiative to address the issue of

unexamined applications that have been pending for a long time. Current

examination resources are being reallocated within and across Technology

Centers to start examination of the oldest unexamined applications, with no

requirement of additional fees by the applicant. Prioritized examination is

a separate initiative for newly filed applications in which applicants may

pay an additional fee, which is used by the Office to expand its examination

resources. Prioritized examination must be requested upon filing. If an

application is pending, the applicant may file a continuing application and

request prioritized examination for the new application. This approach ensures

equitable treatment for all applicants who seek to participate in the Track I

program in view of the limit of 10,000 applications during fiscal year 2011.

 

   Comment 14: A few comments stated that a request for prioritized

examination should not be limited to when a patent application is filed. Some

comments stated that this would result in applicants filing continuation

applications to take advantage of Track I, which will increase the workload

of the Office and the applicants. A few comments supported permitting

applicants to request prioritized examination with respect to all pending,

unexamined applications. One comment suggested requiring a reasonably higher

fee for requesting prioritized examination after the patent application has

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been filed. Another comment supported permitting a request for prioritized

examination to be filed at any time.

   Response: In recognition of the necessity of adding additional resources

so that non-prioritized examination will not be delayed and that prioritized

examination will occur within one year, the Office is implementing prioritized

examination in a prudent and measured manner. The Office will reevaluate the

limitations on prioritized examination based on the results of its initial

implementation and after it gains experience with the Track I program. While

applicants may file continuing applications at their discretion, any Track I

continuation application filed may moot or reduce the issues remaining in the

originally filed application. This may result in abandonment of the originally

filed application; alternatively, its examination will be aided by the

substantial examination performed on the Track I continuing application.

 

   Comment 15: One comment stated that a request for prioritized examination

should be permitted for reissue applications to apply the data-driven

performance monitoring of Track I to reissue applications.

   Response: Reissue applications are already treated as special applications.

See MPEP § 1442. If the Office were to make prioritized examination available

to reissue applications, it would not have any impact on when the examiner is

expected to take the application up for action. The Office recognizes that

there is a need to better track and monitor the various types of special

applications, including reissue applications, and is working on improvements

to its tracking and monitoring system as part of its Patents End-to-End

Information Technology (IT) project.

 

   Comment 16: One comment suggested that applicants should be permitted to

pay the appropriate fees or otherwise make the application complete after

filing of the application. The comment noted that applicants are familiar

with and rely on missing parts practice to complete applications before they

are placed in the examination queue and there appears to be no compelling

reason to deviate from this practice for prioritized examination.

   Response: Applicants requesting prioritized examination are required to

file applications that are complete. If applicants requesting prioritized

examination were allowed to file applications that were not complete, it

would delay examination of the application, which is directly counter to

providing a final disposition of the application in the shortest time

possible. In addition, as the Office is initially limiting requests for

prioritized examination, the Office considers it appropriate to give priority

to applicants whose applications are complete on filing over applicants whose

applications require the delays caused by the missing parts practice.

 

   Comment 17: One comment questioned whether the Office will set an annual

limit on the number of Track I applications a given applicant can file. One

comment questioned whether the Office will set an annual limit on the number

of Track I applications per Technology Center.

   Response: The Office is not setting an annual limit on the number of

requests for prioritized examination that a given applicant can file. The

Office is also not setting an annual limit on the number of applications that

can be granted Track I prioritized examination per Technology Center. The

Office will monitor the Track I program closely. If it is determined that an

annual limit is needed per applicant and/or per Technology Center, the Office

may make such adjustments to the program in the future.

 

   Comment 18: A few comments indicated that statistics should be published

on the number of requests received as well as the aggregate time to final

disposition at the greatest level of granularity practical (e.g., the Group

Art Unit level or the Technology Center level). One comment stated that the

Office should closely monitor which technological areas are using Track I and

minimize any imbalances in the backlog of different technology areas.

   A few comments indicated that, for each statistic reported, the data should

indicate the numbers of small entity and non-small entity applicants. Such

information could potentially be used to advocate for reduced fees for small

entities.

   One comment stated that in order to ensure that non-prioritized

applications and overall examination quality are not being impacted, detailed

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metrics must be provided to the public, including metrics on

pendency, quality, and hiring measured against the Office's current stated

goals. The comment suggested that the Office could include the composition

of examiners (by GS-level) examining applications in each track to further

protect against any track bias.

   Response: The Office is committed to providing meaningful statistical

reports on the Track I program with as much specificity as is practical.

The Office will closely monitor the program and make any needed adjustments.

The Office favors reduced fees for small entities and, wherever possible,

will develop statistical reports to identify the numbers of small entity and

non-small entity applicants to support any such legislation.

   The ability of the Office to meet its goals for prioritized examination

will be posted on the Office's Internet Web site on a quarterly basis at the

work group level. Applications examined under Track I will be subject to the

same quality metrics applied to applications undergoing non-prioritized

examination. Data relating to prioritized examination will be made public to

the extent practicable; e.g., to the extent that such data is not linked to

any specific application and to the extent that the pertinent sample size for

a subgroup of data provides a statistically valid basis for reporting such

data for that subgroup.

 

   Comment 19: One comment stated that a final action on an application for

which prioritized examination has been requested should be made within a

couple of months instead of twelve months.

   Response: The Office is setting an aggregate goal of twelve months to final

disposition based on its perceived ability to meet the goal. Based on the

Office's experience with other accelerated examination programs, the Office

would not be able to meet an aggregate goal for handling applications under

prioritized examination of two or three months to final disposition.

 

   Comment 20: One comment suggested that the filing of an appeal brief,

rather than the filing of a notice of appeal, should trigger the termination

of prioritized examination because sometimes a notice of appeal is filed to

maintain pendency of an application while the examiner considers an after-

final response.

   Response: The final disposition for the twelve-month goal includes the

mailing of a final Office action. In the situation where an applicant files a

notice of appeal after a second non-final Office action, the final disposition

will include the filing of the notice of appeal. Thus, once a final Office

action has been mailed or a notice of appeal has been filed, whichever is

earlier, the examination of the application would no longer be prioritized

under § 1.102(e). Therefore, there is no need to make the filing of an appeal

brief the final disposition for purposes of the twelve-month goal, rather than

the filing of a notice of appeal, to accommodate the situation where an

applicant files a notice of appeal to maintain pendency of the application

while the examiner considers an after-final reply.

 

   Comment 21: One comment requested a relaxation of the limits on the

number of claims so that the prioritized examination program would be

accessible to more users, although no suggestion was made as to what the

claim limit should be.

   Response: In recognition of the necessity of adding additional resources

so that non-prioritized examination will not be delayed and that the twelve-

month aggregate goal for prioritized examination can be achieved, the Office

is implementing prioritized examination in a prudent and measured manner. The

Office will revisit the limitations on prioritized examination based on the

results of its initial implementation.

 

   Comment 22: One comment stated that the limit on claims would result in an

applicant being unable to amend the claims to place them in independent form

after a final rejection where dependent claims were found allowable.

According to the comment, applicants would either have to file an appeal or

do without the full protection to which they are entitled. The comment stated

that there should not be a limit on how many claims may be placed in

independent form during prosecution. Another comment suggested permitting

addition of claims once allowable subject matter has been identified,

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provided that the added claims do not require further search or examination.

   Response: Track I is designed to provide prioritized examination of the

application; as such, it is directed towards substantive examination of claims

for which no final disposition has been reached. Accordingly, prioritized

examination accords a special status to the application until a final

disposition is reached in the application. As discussed previously, a final

disposition for the twelve-month goal means: (1) Mailing of a notice of

allowance, (2) mailing of a final Office action, (3) filing of a notice of

appeal, (4) declaration of an interference by the Board of Patent Appeals and

Interferences (BPAI), (5) filing of a request for continued examination, or

(6) abandonment of the application. The submission of an amendment resulting

in there being more than four independent claims or more than thirty total

claims is not prohibited, but simply terminates the prioritized examination.

Thus, upon mailing of a final rejection (at which point prioritized

examination is terminated), applicants may amend the claims to place them in

independent form where dependent claims were found allowable, or add new

claims, subject only to the limitations applicable to any application under

final rejection. See § 1.116. Similarly, upon mailing of a notice of

allowance, applicants may submit amendments to the claims, again subject only

to the limitations applicable to any application that has been allowed. See

§ 1.312

 

   Comment 23: One comment noted that the limit on the number of claims is

apparently subject to a preliminary amendment and requested a clarification

regarding whether such amendments must be made at the time of filing.

   Response: An application in which applicant is requesting prioritized

examination under § 1.102(e) must have no more than four independent claims

and thirty total claims, and must not have any multiple dependent claims,

when the application is filed. Otherwise, the request for prioritized

examination under § 1.102(e) will not be granted. While it is possible to

file a preliminary amendment on filing of an application to reduce the number

of claims to no more than four independent claims and thirty total claims,

and to eliminate any multiple dependent claims, the Office strongly encourages

applicants to file applications without any preliminary amendments. Applicants

should file their applications with the desired claims, rather than submitting

a preliminary amendment on filing. This will reduce the amount of processing

done by the Office, thus reducing Office costs, and will help ensure patent

application publications and patents are printed correctly. See Revised

Procedure for Preliminary Amendments Presented on Filing of a Patent

Application, 1300 Off. Gaz. Pat. Office 69 (November 8, 2005). If an amendment

is filed in an application that has been granted a prioritized examination

that results in more than four independent claims or thirty total claims, or

a multiple dependent claim, then prioritized examination will be terminated.

 

   Comment 24: One comment stated that an applicant's request for an

extension of time should not result in termination of prioritized examination,

particularly where the extension of time leads to early issuance of a patent.

Another comment stated that an applicant paying for better service from the

Office should not be given less time to respond to Office actions than anyone

else.

   Response: The Office is being flexible by not prohibiting an applicant from

filing a request for extension of time in an application that has been granted

prioritized examination under § 1.102(e). However, filing an extension of time

would significantly impact the Office's ability to meet the twelve-month

aggregate goal to final disposition for handling applications under Track I.

Therefore, prioritized examination will be terminated if an applicant does

file a request for an extension of time in a Track I application.

 

Rule Making Considerations

 

   A. Regulatory Flexibility Act: For the reasons set forth herein, the

Deputy General Counsel for General Law of the United States Patent and

Trademark Office has certified to the Chief Counsel for Advocacy of the

Small Business Administration that changes set forth in this notice will not

have a significant economic impact on a substantial number of small entities.

See 5 U.S.C. 605(b).

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   This notice sets forth changes to implement an optional prioritized

examination process. The primary impact of the change on the public is that

applicants will have the option to request prioritized examination by paying

appropriate fees, filing a complete application via the Office's electronic

filing system (EFS-Web) with any filing and excess claims fees due paid on

filing, and limiting their applications to four independent claims and

thirty total claims. No applicant is required to employ this optional

prioritized examination process to obtain examination of his

or her application under the current procedures for examination of an

application for a patent, or to obtain a patent provided that the application

meets the current conditions for the applicants to be entitled to a patent.

In addition, the availability of this prioritized examination process will

not have any significant negative impact on any applicant who elects not to

request the prioritized examination process. Therefore, the changes set forth

in this notice will not have a significant economic impact on a substantial

number of small entities.

 

   B. Executive Order 12866 (Regulatory Planning and Review): This rule making

has been determined to be significant for purposes of Executive Order 12866

(Sept. 30, 1993).

 

   C. Executive Order 13563 (Improving Regulation and Regulatory Review):

The Office has complied with Executive Order 13563. Specifically, the Office

has: (1) Used the best available techniques to quantify costs and benefits,

and has considered values such as equity, fairness and distributive impacts;

(2) provided the public with a meaningful opportunity to participate in the

regulatory process, including soliciting the views of those likely affected

prior to issuing a notice of proposed rule making, and provided online access

to the rule making docket; (3) attempted to promote coordination,

simplification and harmonization across government agencies and identified

goals designed to promote innovation; (4) considered approaches that reduce

burdens and maintain flexibility and freedom of choice for the public; and

(5) ensured the objectivity of scientific and technological information and

processes, to the extent applicable.

 

   D. Executive Order 13132 (Federalism): This rule making does not contain

policies with federalism implications sufficient to warrant preparation of a

Federalism Assessment under Executive Order 13132 (Aug. 4, 1999).

 

   E. Executive Order 13175 (Tribal Consultation): This rule making will not:

(1) Have substantial direct effects on one or more Indian tribes; (2) impose

substantial direct compliance costs on Indian tribal governments; or (3)

preempt tribal law. Therefore, a tribal summary impact statement is not

required under Executive Order 13175 (Nov. 6, 2000).

 

   F. Executive Order 13211 (Energy Effects): This rule making is not a

significant energy action under Executive Order 13211 because this rule making

is not likely to have a significant adverse effect on the supply,

distribution, or use of energy. Therefore, a Statement of Energy Effects is

not required under Executive Order 13211 (May 18, 2001).

 

   G. Executive Order 12988 (Civil Justice Reform): This rule making meets

applicable standards to minimize litigation, eliminate ambiguity, and reduce

burden as set forth in sections 3(a) and 3(b)(2) of Executive Order 12988

(Feb. 5, 1996).

 

   H. Executive Order 13045 (Protection of Children): This rule making does

not concern an environmental risk to health or safety that may dispro-

portionately affect children under Executive Order 13045 (Apr. 21, 1997).

 

   I. Executive Order 12630 (Taking of Private Property): This rule making

will not effect a taking of private property or otherwise have taking

implications under Executive Order 12630 (Mar. 15, 1988).

 

   J. Congressional Review Act: Under the Congressional Review Act provisions

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of the Small Business Regulatory Enforcement Fairness Act of 1996 (5 U.S.C.

801 et seq.), prior to issuing any final rule, the United States Patent and

Trademark Office will submit a report containing the final rule and other

required information to the United States Senate, the United States House of

Representatives and the Comptroller General of the Government Accountability

Office. The changes in this notice are not expected to result in an annual

necessary resources to increase the work output of the Office without

delaying non-prioritized effect on the economy of 100 million dollars

or more, a major increase in costs or prices, or significant adverse

effects on competition, employment, investment, productivity,

innovation, or the ability of United States-based enterprises to

compete with foreign-based enterprises in domestic and export

markets. Therefore, this notice is not expected to result in a "major rule"

as defined in 5 U.S.C. 804(2).

 

   K. Unfunded Mandates Reform Act of 1995: The changes set forth in this

notice do not involve a Federal intergovernmental mandate that will result

in the expenditure by State, local, and tribal governments, in the aggregate,

of 100 million dollars (as adjusted) or more in any one year, or a Federal

private sector mandate that will result in the expenditure by the private

sector of 100 million dollars (as adjusted) or more in any one year, and will

not significantly or uniquely affect small governments. Therefore, no actions

are necessary under the provisions of the Unfunded Mandates Reform Act of

1995. See 2 U.S.C. 1501 et seq.

 

   L. National Environmental Policy Act: This rule making will not have any

effect on the quality of the environment and is thus categorically excluded

from review under the National Environmental Policy Act of 1969. See 42

U.S.C. 4321 et seq.

 

   M. National Technology Transfer and Advancement Act: The requirements of

section 12(d) of the National Technology Transfer and Advancement Act of 1995

(15 U.S.C. 272 note) are not applicable because this rule making does not

contain provisions which involve the use of technical standards.

 

   N. Paperwork Reduction Act: This rule making is proposed to implement an

optional prioritized examination process. The primary impact of the change on

the public is that applicants will have the option to request prioritized

examination by paying appropriate fees, filing a complete application via the

Office's electronic filing system (EFS-Web) with any filing and excess claims

fees due paid on filing, and limiting their applications to four independent

claims and thirty total claims.

 

   An applicant who wishes to participate in the program must submit a

certification and request to participate in the prioritized examination

program, preferably by using Form PTO/SB/424. The Office of Management and

Budget (OMB) has determined that, under 5 CFR 1320.3(h), Form PTO/SB/424 does

not collect "information" within the meaning of the Paperwork Reduction Act

of 1995. Therefore, this rule making does not impose additional collection

requirements under the Paperwork Reduction Act which are subject to further

review by OMB.

 

   Notwithstanding any other provision of law, no person is required to

respond to nor shall a person be subject to a penalty for failure to comply

with a collection of information subject to the requirements of the Paperwork

Reduction Act unless that collection of information displays a currently valid

OMB control number.

 

List of Subjects in 37 CFR Part 1

 

   Administrative practice and procedure, Courts, Freedom of Information,

Inventions and patents, Reporting and recordkeeping requirements, Small

businesses.

 

   For the reasons set forth in the preamble, 37 CFR part 1 is amended

as follows:

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PART 1 - RULES OF PRACTICE IN PATENT CASES

 

.   1. The authority citation for 37 CFR part 1 continues to read as follows:

 

       Authority: 35 U.S.C. 2(b)(2).

 

.   2. Section 1.17 is amended by adding paragraph (c) and revising paragraph

(i) to read as follows:

 

§ 1.17  Patent application and reexamination processing fees.

 

* * * * *

 

   (c) For filing a request for prioritized examination under

§ 1.102(e) .... $4,000.00.

 

* * * * *

 

   (i) Processing fee for taking action under one of the following sections

which refers to this paragraph: $130.00.

 

   § 1.28(c)(3) - for processing a non-itemized fee deficiency based on an

error in small entity status.

 

   § 1.41 - for supplying the name or names of the inventor or inventors

after the filing date without an oath or declaration as prescribed by § 1.63,

except in provisional applications.

 

   § 1.48 - for correcting inventorship, except in provisional applications.

 

   § 1.52(d) - for processing a nonprovisional application filed with a

 specification in a language other than English.

 

   § 1.53(b)(3) - to convert a provisional application filed under § 1.53(c)

into a nonprovisional application under § 1.53(b).

 

   § 1.55 - for entry of late priority papers.

 

   § 1.71(g)(2) - for processing a belated amendment under § 1.71(g).

 

   § 1.99(e) - for processing a belated submission under § 1.99.

 

   § 1.102(e) - for requesting prioritized examination of an application.

 

   § 1.103(b) - for requesting limited suspension of action, continued

prosecution application for a design patent (§ 1.53(d)).

 

   § 1.103(c) - for requesting limited suspension of action, request for

continued examination (§ 1.114).

 

   § 1.103(d) - for requesting deferred examination of an application.

 

   § 1.217 - for processing a redacted copy of a paper submitted in the file

of an application in which a redacted copy was submitted for the patent

application publication.

 

   § 1.221 - for requesting voluntary publication or republication of an

application.

 

   § 1.291(c)(5) - for processing a second or subsequent protest by the same

real party in interest.

 

   § 1.497(d) - for filing an oath or declaration pursuant to 35 U.S.C.

371(c)(4) naming an inventive entity different from the inventive entity

set forth in the international stage.

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   § 3.81 - for a patent to issue to assignee, assignment submitted after

payment of the issue fee.

 

* * * * *

 

.   3. Section 1.102 is amended by revising paragraph (a) and adding

paragraph (e) to read as follows:

 

§ 1.102  Advancement of examination.

 

   (a) Applications will not be advanced out of turn for examination

or for further action except as provided by this part, or upon order of

the Director to expedite the business of the Office, or upon filing of

a request under paragraph (b) or (e) of this section or upon filing a

petition or request under paragraph (c) or (d) of this section with a

showing which, in the opinion of the Director, will justify so advancing it.

 

* * * * *

 

   (e) A request for prioritized examination under this paragraph may

be filed only with an original utility or plant nonprovisional application

under 35 U.S.C. 111(a) that is complete as defined by § 1.51(b), with any

fees due under § 1.16 paid on filing. If the application is a utility

application, it must be filed via the Office's electronic filing system

(EFS-Web). A request for prioritized examination under this paragraph must be

present upon filing and must be accompanied by the prioritized examination

fee set forth in § 1.17(c), the processing fee set forth in § 1.17(i), and

the publication fee set forth in § 1.18(d). Prioritized examination under

this paragraph will not be accorded to a design application or reissue

application, and will not be accorded to any application that contains or is

amended to contain more than four independent claims, more than thirty total

claims, or any multiple dependent claim.

 

March 23, 2011                                              DAVID J. KAPPOS

                                            Under Secretary of Commerce for

                                  Intellectual Property and Director of the

                                  United States Patent and Trademark Office

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