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286 | Patent it YOURSELF errors. If any errors are indicated, you’ll have to go back and fix them. Occasionally, the PTO’s server may reject one or more PDF documents for technical reasons—for example, the document contains nonembedded fonts or it has been scanned in gray format. If the PTO’s server rejects your PDF because of embedded fonts or another fatal error, it will post a red inverted triangle ( ) next to the name of the file. Many of these problems can be eliminated by recreating the PDF—that is, open your PDF creation program and convert the document a second time to a new “image” PDF. If you convert the PDF to an image PDF the server may object to it using a yellow inverted triangle, which indicates that the error isn’t fatal, in which case you can proceed. It merely means that the PTO will have to copy your data manually into their data processing system. Sometimes the PTO’s server (computer) will fatally reject a PDF because you saved it using a newer version of a PDF Reader program that the PTO’s system doesn’t support, e.g., Adobe Reader 9.4; in this case you will have to remove this version from your computer and download an earlier version, e.g., Adobe Reader 8.2 When there are no fatal errors click Continue. • Calculate Fees: On the Calculate Fees page, select your entity size, which will usually be Small Entity. Check and complete all the applicable boxes on the form and then click the Calculate button. (The Search, Filing, and Examination fees must all be paid at once.) • Submit Application: This page will list all of your PDF files, a Fee-Info.pdf file, and the filing fee. If everything is okay, click the Submit button at the bottom to bring up a Congratulations! page with an assigned Application Number, Confirmation Number, and Total Fees due. Click the YES! I want to pay now button at the bottom. • Review Fees and Select Payment Method: Unless you have a PTO Deposit Account or are set up for EFT, select Charge Credit Card, then the Start online payment process to bring up the payment page. Fill out the blanks and click the Confirm button at the bottom. • Acknowledgment Receipt: If everything is okay you’ll get an Acknowledgment Receipt, which is analogous to the receipt postcard that was used for mailed filings. The Acknowledgment Receipt will list the Application (Serial) Number, the Confirmation Number, and the application data and parts that you’ve filed. Congratulations! You’ve bypassed the post office, filed an application electronically, and have gotten an instant filing acknowledgment. Select Print This Page to print the page for your records. In due course you’ll get an official filing receipt by mail, as usual. Enhanced First Action Interview Pilot Program for Registered eFilers If you are a registered eFiler, you may wish to avail yourself of a new program which the PTO is testing. Under the Enhanced First Action Interview Pilot Program applicants will have an opportunity to interview their examiner after the examiner makes a search. The goal of the program is to dispose of application early without the need for Office Actions and amendments. Under the program, the examiner will send a first Office Action (examination report) and you will study it and the references cited and request an interview with the examiner and hopefully negotiate whatever claim amendments and other changes will put the application in condition for allowance. If you and the examiner cannot come to any agreement, then prosecution will revert to the normal procedure. If you feel confident enough to study the references in an Office Action, redraft your claims, and handle an interview, I recommend you enter the program. The program is on a trial basis but may be extended or implemented permanently. To see the PTO’s notices with the full details go to the PTO’s home page (www.uspto.gov) and enter “First Action Interview Pilot Program” in the search box. To enter the program you must be a registered eFiler and you must file a request on Form PTO/SB/413C. • IDS: As stated in the next section, you must generally file an IDS (Information Disclosure Statement) within three months after filing if you know of any relevant prior art. If you’re a registered eFiler you can file an IDS online. Bring up a fillable IDS form by going to www.uspto.gov/ebc, then click EFS-Web Unregistered eFilers, then Electronic Filing, then eFiling Forms. Open the SB/08a form, check Highlight required fields, and fill them out. The program will automatically fill in the header blanks. Then save the completed form using a suitable name, such as IDS. pdf, and file it online in a similar manner as you filed the PDFs of the application. If you’re unregistered you’ll have to fax or mail the IDS. Remember that you don’t have to accompany the IDS with copies of any U.S. patents or published patent applications, but you do have to accompany it with copies of any foreign patents (with an explanation of relevance) and copies of any nonpatent prior art (referred to as Non-Patent Literature (NPL)).
ChaPter 10 | FINALING and MAILING Your APPLICATION | 287 • Assignments: If you want to file an assignment, you must do this through a separate part of the PTO’s website. After you complete your electronic filing and have your Acknowledgment Receipt, or after you receive your official filing receipt by mail, fill in the Serial Number of your application on the assignment, and complete and sign the rest of the assignment. Then convert the signed assignment to PDF and go to http:// epas.uspto.gov and follow the instructions. Designs: To file a design application via EFS-Web, prepare it as instructed below, except omit the postcard, Design Application Transmittal, Fee Transmittal, and CCPF or check. Do prepare the drawings, preamble, specification, and claim, and prepare and sign and date the declaration as instructed above and save these documents as PDF files. Then proceed as in steps 1 to 14 above. G. File the Information Disclosure Statement Within Three Months The PTO’s rules impose on each patent applicant a “duty of candor and good faith” toward the PTO. This means that all inventors (and attorneys) have a duty to disclose to the PTO information (prior art and any other information such as relevant litigation) of which they are aware. The information must be of the type that might influence the patent examiner in deciding on the patent application. (This duty is embodied in Inventor’s Commandment 17, and discussed in Section G above.) To comply with the “prior art” part of Inventor’s Commandment 17, all applicants should submit an Information Disclosure Statement (IDS) at the time of filing the application or within the following three months. It’s not enough to cite the prior-art references in the Prior Art section of your specification. You must cite them on a PTO/SB/08 form and supply copies of non-U.S. patent references to the PTO. Even if it weren’t required, it’s to your advantage to file an IDS and to list as many relevant prior-art references as possible in order to have them considered and noted by the examiner. In this way they will be listed as “References Cited” in the patent. This creates a presumption that the claims of your patent are patentable over these references— that is, you’ll have put these references behind you. You may file the IDS with your application but I suggest that you file the IDS afterward; this will prevent overload while preparing your basic application. The IDS actually consists of an IDS cover letter (Form 10-5 or PTO form SB/21) and the actual IDS (Form 10-6 (A and B) or PTO/SB/08 (A and B), on which you list the prior art. A filled-in sample is provided in Figs. 10O, 10P, and 10Q. (If you file via EFS-Web—discussed in Section F—you should first fill out the PTO/SB/08 form and make PDF copies of any non-U.S. patent references (known as Non- Patent Literature or NPL). You will not need a cover letter because the EFS-Web form provides its own cover letter.) The IDS should list all prior-art references known to the inventors (and any assignees) that are relevant to the patentability of the application. These should include all the references you discovered in your patentability search (see Chapter 6), plus any other prior art of which you’re aware, including even your own papers. In addition, the inventors must include with the IDS a copy of each cited non-U.S. patent reference and a discussion of the relevance of any non–English-language references to the invention. You must cite all references even if you discussed them in the prior-art section of your patent application. (If you aren’t aware of any prior art, don’t file an IDS.) You should remove all marks and notes from any references that you send to the PTO. If you have compiled a very large number of references, list only those that are truly relevant (about 20 or so) and don’t include any cumulative (duplicative) references. If you cite a significant number of irrelevant references, a court may hold that you tried to deceive the PTO by burying the relevant references with a large number of irrelevant references. As a general rule, if you are not sure whether a reference is relevant enough to cite, it’s best to cite it. It doesn’t cost anything to cite an additional reference and the penalty for not citing a relevant reference is severe—your patent can be held invalid. One way to determine whether a reference is relevant enough to cite as prior art in your IDS is to consider not citing it in your IDS and then assume you get a patent. Further assume that you sue an infringer and they find out through discovery that you knew about the reference. If the infringer then cites the reference to the judge and charges you with fraud on the PTO for not citing it, would a reasonable judge be likely to consider that the reference was relevant enough that you should have cited it to avoid fraud on the PTO? Note that the PTO’s Rule 56 states that applicants should examine the following to be sure that they disclose all relevant prior art: 1. Prior art cited in search reports of a foreign patent office in a counterpart application. 2. The closest information over which individuals associated with the filing or prosecution of a patent application believe any pending claim patentably defines, to make sure that any material information contained therein is disclosed to the Office.
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N O LO ® “The best roll-up-your-
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Products & Services Books & Softwar
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15th edition Patent It Yourself You
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Acknowledgments My deep thanks go t
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2 3 4 The Science and Magic of Inve
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8 9 E. Make and Sell Your Invention
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13 14 J. The Patent Laws of Other C
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Appendixes 1 2 Abbreviations Used i
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Your Legal Companion A. You Don’t
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Your Legal COMPANION | 3 D. Should
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C H A P T E R 4 Will Your Invention
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C H A P T E R 7 What Should I Do Ne
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Fig. 7A—Invention Decision Chart
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Nondisclosure Agreement 1. Parties.
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Invention Disclosure Sheet of Inven
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Positive and Negative Factors Evalu
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Searcher’s Worksheet Sheet of Inv
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Form 10-1A: Declaration for Utility
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In the United States Patent and Tra
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Universal License Agreement 1. Part
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whether or not any royalty payment
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INDex | 577 Biotechnology patents e
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Bestsellers The Small Business Star
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Online Legal Forms Nolo offers a la
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Keep Up to Date 1 Go to Nolo.com/ne
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About the Author David Pressman is
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