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The United States Patent and Trademark Office (USPTO) will submit the following information collection request to the Office of Management and Budget (OMB) for review and clearance in accordance with the Paperwork Reduction Act of 1995, on or after the date of publication of this notice. The USPTO invites comments on this information collection renewal, which helps the USPTO assess the impact of its information collection requirements and minimize the public's reporting burden. Public comments were previously requested via the Federal Register on July 8, 2024 during a 60-day comment period (89 FR 55924). This notice allows for an additional 30 days for public comment.
Agency: United States Patent and Trademark Office, Department of Commerce.
Title: Third-Party Submissions and Protests.
OMB Control Number: 0651-0062.
Needs and Uses: The United States Patent and Trademark Office (USPTO) is required by 35 U.S.C. 131 et seq. to examine an application for patent and, when appropriate, issue a patent. The provisions of 35 U.S.C. 122(c), 122(e), 131, and 151, as well as 37 CFR 1.290 and 1.291, limit the ability of a third-party to have information entered and considered in, or to protest, a patent application pending before the USPTO.
37 CFR 1.290 provides a mechanism for third parties to submit to the USPTO for consideration and inclusion in the record of a patent application, any patents, published patent applications, or other printed publications of potential relevance to the examination of the application.
A third-party submission under 37 CFR 1.290 may be made in any nonprovisional utility, design, and plant application, including any continuing application. A third-party submission under 37 CFR 1.290 must include a concise description of the asserted relevance of each document submitted, and must be submitted within a certain statutorily specified time period.
37 CFR 1.291 permits a member of the public to file a protest against a pending application. Protests pursuant to 37 CFR 1.291 are supported by a separate statutory provision from third-party submissions under 37 CFR 1.290. As a result, there are several differences between protests and third-party submissions, as explained in the table below.
Table 1—Comparison of Third-Party Submissions and Protests
| Comparison | Third-party submission | Protest |
|---|---|---|
| Statute/Regulation | 35 U.S.C. 122(e), 37 CFR 1.290 | 35 U.S.C. 122(c), 37 CFR 1.291. |
| Content | Printed publications | Printed publications and any facts or information adverse to patentability. |
| Remarks | Concise description of relevance (limited to a concise description of each document's relevance) | Concise explanation of the relevance (allows for arguments against patentability). |
| Timing | The earlier of— (A) the date of a notice of allowance; or (B) the later of— (i) 6 months after the date of Pre-Grant Publication, or (ii) the date of the first rejection of any claim during the examination of the application for patent | (1) Prior to the date of Pre-Grant Publication or the date of a notice of allowance, whichever occurs first, or (2) accompanied by written consent of the applicant and prior to the date of a notice of allowance. |