Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.
Whoever invents or discovers and asexually reproduces any distinct and new variety of plant, including cultivated sports, mutants, hybrids, and newly found seedlings, other than a tuber propagated plant or a plant found in an uncultivated state, may obtain a patent therefor, subject to the conditions and requirements of this title.
The provisions of this title relating to patents for inventions shall apply to patents for plants, except as otherwise provided.
· (a) IN GENERAL.—Whoever invents any new, original, and ornamental design for an article of manufacture may obtain a patent therefor, subject to the conditions and requirements of this title.
· (b) APPLICABILITY OF THIS TITLE.—The provisions of this title relating to patents for inventions shall apply to patents for designs, except as otherwise provided.
· (c) FILING DATE.—The filing date of an application for patent for design shall be the date on which the specification as prescribed by section 112 and any required drawings are filed.
Patent applications can be directed to three broad types of subject matter:
· (A) applications for patents as provided for by 35 U.S.C. 101 relating to a "new and useful process, machine, manufacture, or composition of matter," etc.;
· (B) applications for plant patents as provided for by 35 U.S.C. 161; and
· (C) applications for design patents as provided for by 35 U.S.C. 171.
The first type of patent application is sometimes referred to as a "utility" patent applications when being contrasted with a plant or design patent application. The specialized procedure which pertains to the examination of applications for design and plant patents are treated in detail in Chapters 1500 and 1600, respectively.
[Editor Note: Applicable to any patent application filed on or after December 18, 2013. See 35 U.S.C. 111 (pre-PLT (AIA)) or 35 U.S.C. 111 (pre-AIA) for the law otherwise applicable.]
· (a) IN GENERAL.—
· (1) WRITTEN APPLICATION.—An application for patent shall be made, or authorized to be made, by the inventor, except as otherwise provided in this title, in writing to the Director.
· (2) CONTENTS.—Such application shall include—
· (A) a specification as prescribed by section 112;
· (B) a drawing as prescribed by section 113; and
· (C) an oath or declaration as prescribed by section 115.
· (3) FEE, OATH OR DECLARATION, AND CLAIMS.—The application shall be accompanied by the fee required by law. The fee, oath or declaration, and 1 or more claims may be submitted after the filing date of the application, within such period and under such conditions, including the payment of a surcharge, as may be prescribed by the Director. Upon failure to submit the fee, oath or declaration, and 1 or more claims within such prescribed period, the application shall be regarded as abandoned.
· (4) FILING DATE.—The filing date of an application shall be the date on which a specification, with or without claims, is received in the United States Patent and Trademark Office.
· (b) PROVISIONAL APPLICATION.—
· (1) AUTHORIZATION.—A provisional application for patent shall be made or authorized to be made by the inventor, except as otherwise provided in this title, in writing to the Director. Such application shall include—
· (A) a specification as prescribed by section 112(a); and
· (B) a drawing as prescribed by section 113.
· (2) CLAIM.—A claim, as required by subsections (b) through (e) of section 112, shall not be required in a provisional application.
· (3) FEE.—The application shall be accompanied by the fee required by law. The fee may be submitted after the filing date of the application, within such period and under such conditions, including the payment of a surcharge, as may be prescribed by the Director. Upon failure to submit the fee within such prescribed period, the application shall be regarded as abandoned.
· (4) FILING DATE.—The filing date of a provisional application shall be the date on which a specification, with or without claims, is received in the United States Patent and Trademark Office.
· (5) ABANDONMENT.—Notwithstanding the absence of a claim, upon timely request and as prescribed by the Director, a provisional application may be treated as an application filed under subsection (a). Subject to section 119(e)(3), if no such request is made, the provisional application shall be regarded as abandoned 12 months after the filing date of such application and shall not be subject to revival after such 12-month period.
· (6) OTHER BASIS FOR PROVISIONAL APPLICATION.—Subject to all the conditions in this subsection and section 119(e), and as prescribed by the Director, an application for patent filed under subsection (a) may be treated as a provisional application for patent.
· (7) NO RIGHT OF PRIORITY OR BENEFIT OF EARLIEST FILING DATE.—A provisional application shall not be entitled to the right of priority of any other application under section 119, 365(a), or 386(a) or to the benefit of an earlier filing date in the United States under section 120, 121, 365(c), or 386(c).
· (8) APPLICABLE PROVISIONS.—The provisions of this title relating to applications for patent shall apply to provisional applications for patent, except as otherwise provided, and except that provisional applications for patent shall not be subject to sections 131 and 135.
· (c) PRIOR FILED APPLICATION.—Notwithstanding the provisions of subsection (a), the Director may prescribe the conditions, including the payment of a surcharge, under which a reference made upon the filing of an application under subsection (a) to a previously filed application, specifying the previously filed application by application number and the intellectual property authority or country in which the application was filed, shall constitute the specification and any drawings of the subsequent application for purposes of a filing date. A copy of the specification and any drawings of the previously filed application shall be submitted within such period and under such conditions as may be prescribed by the Director. A failure to submit the copy of the specification and any drawings of the previously filed application within the prescribed period shall result in the application being regarded as abandoned. Such application shall be treated as having never been filed, unless—
· (1) the application is revived under section 27; and
· (2) a copy of the specification and any drawings of the previously filed application are submitted to the Director.
[Editor Note: Applicable to any patent application filed on or after September 16, 2012, and before December 18, 2013. See 35 U.S.C. 111 or 35 U.S.C. 111 (pre-AIA) for the law otherwise applicable.]
· (a) IN GENERAL.—
· (1) WRITTEN APPLICATION.—An application for patent shall be made, or authorized to be made, by the inventor, except as otherwise provided in this title, in writing to the Director.
· (2) CONTENTS.—Such application shall include—
· (A) a specification as prescribed by section 112;
· (B) a drawing as prescribed by section 113; and
· (C) an oath or declaration as prescribed by section 115.
· (3) FEE AND OATH OR DECLARATION.—The application must be accompanied by the fee required by law. The fee and oath or declaration may be submitted after the specification and any required drawing are submitted, within such period and under such conditions, including the payment of a surcharge, as may be prescribed by the Director.
· (4) FAILURE TO SUBMIT.—Upon failure to submit the fee and oath or declaration within such prescribed period, the application shall be regarded as abandoned, unless it is shown to the satisfaction of the Director that the delay in submitting the fee and oath or declaration was unavoidable or unintentional. The filing date of an application shall be the date on which the specification and any required drawing are received in the Patent and Trademark Office.
· (b) PROVISIONAL APPLICATION.—
· (1) AUTHORIZATION.—A provisional application for patent shall be made or authorized to be made by the inventor, except as otherwise provided in this title, in writing to the Director. Such application shall include—
· (A) a specification as prescribed by section 112(a); and
· (B) a drawing as prescribed by section 113.
· (2) CLAIM.—A claim, as required by subsections (b) through (e) of section 112, shall not be required in a provisional application.
· (3) FEE.—
· (A) The application must be accompanied by the fee required by law.
· (B) The fee may be submitted after the specification and any required drawing are submitted, within such period and under such conditions, including the payment of a surcharge, as may be prescribed by the Director.
· (C) Upon failure to submit the fee within such prescribed period, the application shall be regarded as abandoned, unless it is shown to the satisfaction of the Director that the delay in submitting the fee was unavoidable or unintentional.
· (4) FILING DATE.—The filing date of a provisional application shall be the date on which the specification and any required drawing are received in the Patent and Trademark Office.
· (5) ABANDONMENT.—Notwithstanding the absence of a claim, upon timely request and as prescribed by the Director, a provisional application may be treated as an application filed under subsection (a). Subject to section 119(e)(3), if no such request is made, the provisional application shall be regarded as abandoned 12 months after the filing date of such application and shall not be subject to revival after such 12-month period.
· (6) OTHER BASIS FOR PROVISIONAL APPLICATION.—Subject to all the conditions in this subsection and section 119(e), and as prescribed by the Director, an application for patent filed under subsection (a) may be treated as a provisional application for patent.
· (7) NO RIGHT OF PRIORITY OR BENEFIT OF EARLIEST FILING DATE.—A provisional application shall not be entitled to the right of priority of any other application under section 119 or 365(a) or to the benefit of an earlier filing date in the United States under section 120, 121, or 365(c).
· (8) APPLICABLE PROVISIONS.—The provisions of this title relating to applications for patent shall apply to provisional applications for patent, except as otherwise provided, and except that provisional applications for patent shall not be subject to sections 131 and 135.
Pre-AIA 35 U.S.C. 111 requirements substantially correspond to those of pre-PLT (AIA) 35 U.S.C. 111, but do not include conforming amendments with regard to the oath or declaration provisions and other miscellaneous provisions of the AIA.
· (a)
· (1) A national application as used in this chapter means either a U.S. application for patent which was filed in the Office under 35 U.S.C. 111, an international application filed under the Patent Cooperation Treaty in which the basic national fee under 35 U.S.C. 41(a)(1)(F) has been paid, or an international design application filed under the Hague Agreement in which the Office has received a copy of the international registration pursuant to Hague Agreement Article 10.
· (2) A provisional application as used in this chapter means a U.S. national application for patent filed in the Office under 35 U.S.C. 111(b).
· (3) A nonprovisional application as used in this chapter means either a U.S. national application for patent which was filed in the Office under 35 U.S.C. 111(a), an international application filed under the Patent Cooperation Treaty in which the basic national fee under 35 U.S.C. 41(a)(1)(F) has been paid, or an international design application filed under the Hague Agreement in which the Office has received a copy of the international registration pursuant to Hague Agreement Article 10.
· (b) An international application as used in this chapter means an international application for patent filed under the Patent Cooperation Treaty prior to entering national processing at the Designated Office stage.
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· (l) Hague Agreement as used in this chapter means the Geneva Act of the Hague Agreement Concerning the International Registration of Industrial Designs adopted at Geneva, Switzerland, on July 2, 1999, and Hague Agreement Article as used in this chapter means an Article under the Hague Agreement.
· (m) Hague Agreement Regulations as used in this chapter means the Common Regulations Under the 1999 Act and the 1960 Act of the Hague Agreement, and Hague Agreement Rule as used in this chapter means one of the Hague Agreement Regulations.
· (n) An international design application as used in this chapter means an application for international registration of a design filed under the Hague Agreement. Unless otherwise clear from the wording, reference to "design application" or "application for a design patent" in this chapter includes an international design application that designates the United States.
Applications filed under 35 U.S.C. 111(a) include original nonprovisional utility, plant, design, divisional, continuation, and continuation-in-part applications filed under 37 CFR 1.53(b), reissue applications filed under 37 CFR 1.53(b), and design patent continued prosecution applications (CPAs) filed under 37 CFR 1.53(d). See MPEP § 601.01(a) for an overview of the procedures and requirements for filing applications under 35 U.S.C. 111(a).
For details regarding reissue, design, and plant patent applications, see MPEP Chapters 1400, 1500, and 1600, respectively. For details regarding divisional, continuation, and continuation-in-part applications, see MPEP §§ 201.06 et seq., 201.07, and 201.08, respectively. See MPEP § 201.06(d) for a discussion of continued prosecution applications filed under 37 CFR 1.53(d).
Effective December 18, 2013, the Patent Law Treaties Implementation Act of 2012 (PLTIA) amended the patent laws to implement the provisions of the Patent Law Treaty in title II. Notable changes included the filing date requirements for nonprovisional applications filed under 35 U.S.C. 111(a). Unless the application is for a design patent, nonprovisional applications filed under 35 U.S.C. 111(a) on or after December 18, 2013, are no longer required to include at least one claim or any drawings in order to receive a filing date for the application. See MPEP §§ 601.01(e) and 601.01(f). The filing date of an application for a design patent is the date on which the Office receives the specification including at least one claim and any required drawings. See 35 U.S.C. 171(c). In addition, as provided in 35 U.S.C. 111(c), a nonprovisional application filed under 35 U.S.C. 111(a) on or after December 18, 2013, may be filed by a reference to a previously filed application (foreign, international, provisional, or nonprovisional) indicating that the specification and any drawings of the application are replaced by the reference to the previously filed application. See MPEP § 601.01(a), subsection III.
Applications filed under 35 U.S.C. 111(b) are provisional applications for patent and are filed under 37 CFR 1.53(c). Significant differences between nonprovisional applications filed under 35 U.S.C. 111(a) and provisional applications filed under 35 U.S.C. 111(b) include the following:
· (A) No claim is required in a provisional application.
· (B) No oath or declaration is required in a provisional application.
· (C) Provisional applications will not be examined for patentability.
· (D) A provisional application is not entitled to claim priority to any foreign application or the benefit of any earlier filed national application.
· (E) A design patent application is not entitled to claim the benefit of a provisional application (See 35 U.S.C. 172 and 37 CFR 1.53(c)(4) ).
See MPEP § 201.04 for detailed information regarding provisional applications.
For applications not filed under 35 U.S.C. 111, see MPEP Chapters 1800 and 2900 for details regarding international applications (PCT) and international design applications, respectively.
An international application designating the United States shall have the effect, from its international filing date under article 11 of the treaty, of a national application for patent regularly filed in the Patent and Trademark Office.
37 CFR 1.9(a)(1) defines a national application as a U.S. application which was filed in the Office under 35 U.S.C. 111, an international application filed under the Patent Cooperation Treaty in which the basic national fee under 35 U.S.C. 41(a)(1)(F) has been paid, or an international design application filed under the Hague Agreement in which the Office has received a copy of the international registration pursuant to Hague Agreement Article 10.
Note that 37 CFR 1.9(b) defines an international application for patent as one filed under the Patent Cooperation Treaty prior to entering national processing at the Designated Office stage.
Treatment of a national application under 35 U.S.C. 111 and a national stage application (a national application which entered the national stage from an international application in which the conditions of 37 CFR 1.9(a)(1) have been satisfied) are similar but not identical.
See MPEP § 1893.03 et seq. for examination of international applications in the national stage, and MPEP § 1896 for a description of the differences between a nonprovisional application filed under 35 U.S.C. 111(a) and an international application filed under the Patent Cooperation Treaty that entered the national stage. Note in particular the following examples:
· (A) Restriction practice as explained in MPEP § 806 et seq. is applied to national applications under 35 U.S.C. 111(a) while unity of invention practice as explained in MPEP §§ 1850 and 1893.03(d) is applied to national stage applications.
· (B) National nonprovisional applications filed under 35 U.S.C. 111(a) without an executed oath or declaration, basic filing fee, search fee, or examination fee are governed by the notification practice set forth in 37 CFR 1.53(f), as are utility and plant patent applications filed on or after December 18, 2013, without a claim. Incomplete national stage applications are governed by the notification practice set forth in 37 CFR 1.495.
An international design application designating the United States shall have the effect, for all purposes, from its filing date determined in accordance with section 384, of an application for patent filed in the Patent and Trademark Office pursuant to chapter 16.
· (a)
· (1) A national application as used in this chapter means either a U.S. application for patent which was filed in the Office under 35 U.S.C. 111, an international application filed under the Patent Cooperation Treaty in which the basic national fee under 35 U.S.C. 41(a)(1)(F) has been paid, or an international design application filed under the Hague Agreement in which the Office has received a copy of the international registration pursuant to Hague Agreement Article 10.
· (2) A provisional application as used in this chapter means a U.S. national application for patent filed in the Office under 35 U.S.C. 111(b).
· (3) A nonprovisional application as used in this chapter means either a U.S. national application for patent which was filed in the Office under 35 U.S.C. 111(a), an international application filed under the Patent Cooperation Treaty in which the basic national fee under 35 U.S.C. 41(a)(1)(F) has been paid, or an international design application filed under the Hague Agreement in which the Office has received a copy of the international registration pursuant to Hague Agreement Article 10.
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· (l) Hague Agreement as used in this chapter means the Geneva Act of the Hague Agreement Concerning the International Registration of Industrial Designs adopted at Geneva, Switzerland, on July 2, 1999, and Hague Agreement Article as used in this chapter means an Article under the Hague Agreement.
· (m) Hague Agreement Regulations as used in this chapter means the Common Regulations Under the 1999 Act and the 1960 Act of the Hague Agreement, and Hague Agreement Rule as used in this chapter means one of the Hague Agreement Regulations.
· (n) An international design application as used in this chapter means an application for international registration of a design filed under the Hague Agreement. Unless otherwise clear from the wording, reference to "design application" or "application for a design patent" in this chapter includes an international design application that designates the United States.
Title I of the Patent Law Treaties Implementation Act of 2012 (PLTIA), Public Law 112-211, 126 Stat. 1527 (Dec. 18, 2012) implemented the Hague Agreement Concerning International Registration of Industrial Designs. The Hague Agreement is an international agreement that enables an applicant to file a single international design application which may have the effect of an application for protection for the design(s) in countries and/or intergovernmental organizations that are parties to the Hague Agreement (the "Contracting Parties") designated in the application. The United States is a Contracting Party to the Hague Agreement, which took effect with respect to the United States on May 13, 2015. The Hague Agreement is administered by the International Bureau of the World Intellectual Property Organization ("the International Bureau").
See MPEP Chapter 2900 for information regarding international design applications.
See 37 CFR 1.9(a) for definitions of the terms "national application," "provisional application," and "nonprovisional application;" see 37 CFR 1.9(b) for the definition of "international application;" and see 37 CFR 1.9(n) for the definition of "international design application." See also MPEP § 201.01.
"Original" application is used in the patent statutes and rules to refer to an application which is not a reissue application. An original application may be a first filing or a continuing application.
A continuing application is a continuation, divisional, or continuation-in-part application filed under the conditions specified in 35 U.S.C. 120, 121, 365(c), or 386(c) and 37 CFR 1.78.
A "substitute" application is in essence the duplicate of an application by the same applicant abandoned before the filing of the later application. Current practice does not require applicant to insert in the specification reference to the earlier application; however, attention should be called to the earlier application. A substitute application does not obtain the benefit of the filing date of the prior application. Use form paragraph 2.07 to remind applicant of possible substitute status.
Applicant refers to this application as a "substitute" of Application No. [1], filed [2]. The term "substitute" is used to designate an application which is in essence the duplicate of an application by the same applicant abandoned before the filing of the later application. A "substitute" does not obtain the benefit of the filing date of the prior application.
[Editor Note: Information pertaining to correction of inventorship, name of inventor, and order of names in an application has been moved to MPEP § 602.01(c) et seq.]
[Editor Note: Applicable to any patent application filed on or after December 18, 2013. See 35 U.S.C. 111 (pre-PLT (AIA)) or 35 U.S.C. 111 (pre-AIA) for the law applicable to provisional applications filed under 35 U.S.C. 111(b) before December 18, 2013.]
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· (b) PROVISIONAL APPLICATION.—
· (1) AUTHORIZATION.—A provisional application for patent shall be made or authorized to be made by the inventor, except as otherwise provided in this title, in writing to the Director. Such application shall include—
· (A) a specification as prescribed by section 112(a); and
· (B) a drawing as prescribed by section 113.
· (2) CLAIM.—A claim, as required by subsections (b) through (e) of section 112, shall not be required in a provisional application.
· (3) FEE.—The application shall be accompanied by the fee required by law. The fee may be submitted after the filing date of the application, within such period and under such conditions, including the payment of a surcharge, as may be prescribed by the Director. Upon failure to submit the fee within such prescribed period, the application shall be regarded as abandoned.
· (4) FILING DATE.—The filing date of a provisional application shall be the date on which a specification, with or without claims, is received in the United States Patent and Trademark Office.
· (5) ABANDONMENT.—Notwithstanding the absence of a claim, upon timely request and as prescribed by the Director, a provisional application may be treated as an application filed under subsection (a). Subject to section 119(e)(3), if no such request is made, the provisional application shall be regarded as abandoned 12 months after the filing date of such application and shall not be subject to revival after such 12-month period.
· (6) OTHER BASIS FOR PROVISIONAL APPLICATION.—Subject to all the conditions in this subsection and section 119(e), and as prescribed by the Director, an application for patent filed under subsection (a) may be treated as a provisional application for patent.
· (7) NO RIGHT OF PRIORITY OR BENEFIT OF EARLIEST FILING DATE.—A provisional application shall not be entitled to the right of priority of any other application under section 119, 365(a), or 386(a) or to the benefit of an earlier filing date in the United States under section 120, 121, 365(c), or 386(c).
· (8) APPLICABLE PROVISIONS.—The provisions of this title relating to applications for patent shall apply to provisional applications for patent, except as otherwise provided, and except that provisional applications for patent shall not be subject to sections 131 and 135.
· (a)
· *****
· (2) A provisional application as used in this chapter means a U.S. national application for patent filed in the Office under 35 U.S.C. 111(b).
*****
[Editor Note: Applicable to patent applications filed under 35 U.S.C. 111 on or after December 18, 2013.]
*****
· (c) Application filing requirements — Provisional application. The filing date of a provisional application is the date on which a specification, with or without claims, is received in the Office. No amendment, other than to make the provisional application comply with the patent statute and all applicable regulations, may be made to the provisional application after the filing date of the provisional application.
· (1) A provisional application must also include the cover sheet required by § 1.51(c)(1), which may be an application data sheet (§ 1.76 ), or a cover letter identifying the application as a provisional application. Otherwise, the application will be treated as an application filed under paragraph (b) of this section.
· (2) An application for patent filed under paragraph (b) of this section may be converted to a provisional application and be accorded the original filing date of the application filed under paragraph (b) of this section. The grant of such a request for conversion will not entitle applicant to a refund of the fees that were properly paid in the application filed under paragraph (b) of this section. Such a request for conversion must be accompanied by the processing fee set forth in § 1.17(q) and be filed prior to the earliest of:
· (i) Abandonment of the application filed under paragraph (b) of this section;
· (ii) Payment of the issue fee on the application filed under paragraph (b) of this section; or
· (iii) Expiration of twelve months after the filing date of the application filed under paragraph (b) of this section.
· (3) A provisional application filed under paragraph (c) of this section may be converted to a nonprovisional application filed under paragraph (b) of this section and accorded the original filing date of the provisional application. The conversion of a provisional application to a nonprovisional application will not result in either the refund of any fee properly paid in the provisional application or the application of any such fee to the filing fee, or any other fee, for the nonprovisional application. Conversion of a provisional application to a nonprovisional application under this paragraph will result in the term of any patent to issue from the application being measured from at least the filing date of the provisional application for which conversion is requested. Thus, applicants should consider avoiding this adverse patent term impact by filing a nonprovisional application claiming the benefit of the provisional application under 35 U.S.C. 119(e), rather than converting the provisional application into a nonprovisional application pursuant to this paragraph. A request to convert a provisional application to a nonprovisional application must be accompanied by the fee set forth in § 1.17(i) and an amendment including at least one claim as prescribed by 35 U.S.C. 112(b), unless the provisional application under paragraph (c) of this section otherwise contains at least one claim as prescribed by 35 U.S.C. 112(b). The nonprovisional application resulting from conversion of a provisional application must also include the filing fee, search fee, and examination fee for a nonprovisional application, and the surcharge required by § 1.16(f) if either the basic filing fee for a nonprovisional application or the inventor's oath or declaration was not present on the filing date accorded the resulting nonprovisional application (i.e., the filing date of the original provisional application). A request to convert a provisional application to a nonprovisional application must also be filed prior to the earliest of:
· (i) Abandonment of the provisional application filed under paragraph (c) of this section; or
· (ii) Expiration of twelve months after the filing date of the provisional application filed under paragraph (c) of this section.
· (4) A provisional application is not entitled to the right of priority under 35 U.S.C. 119, 365(a), or 386(a) or § 1.55, or to the benefit of an earlier filing date under 35 U.S.C. 120, 121, 365(c), or 386(c) or § 1.78 of any other application. No claim for priority under 35 U.S.C. 119(e) or § 1.78(a) may be made in a design application based on a provisional application. A provisional application disclosing nucleotide and/or amino acid sequences is not required to include a separate sequence listing; however, if submitted in a provisional application filed on or after July 1, 2022, any submission of nucleotide and/or amino acid sequence data must be by way of a "Sequence Listing XML" in compliance with §§ 1.831 through 1.834.
Effective December 18, 2013, the Patent Law Treaties Implementation Act of 2012 (PLTIA), title II, amended 35 U.S.C. 111(b) to more closely align the corresponding provisions for nonprovisional applications in 35 U.S.C. 111(a) and provisional applications in 35 U.S.C. 111(b). The corresponding provision in 37 CFR 1.53(c) was revised accordingly.
The parts of a provisional application that are required are set forth in 37 CFR 1.51(c) and MPEP § 601.01(b). The filing date of a provisional application filed on or after December 18, 2013, is the date on which a specification as prescribed by 35 U.S.C. 112(a), with or without claims, is filed in the United States Patent and Trademark Office. Although the application will be accorded a filing date regardless of whether any drawings are submitted, applicants are advised to file any drawing required by 37 CFR 1.81(a) with the application. No amendment, other than to make the provisional application comply with the patent statute and all applicable regulations, may be made to the provisional application after the filing date of the provisional application.
A provisional application must include a cover sheet required by 37 CFR 1.51(c)(1), which may be an application data sheet (37 CFR 1.76 ), the Office’s form SB/16, Provisional Application for Patent Cover Sheet (available at www.uspto.gov/patent/ forms/forms-patent-applications-filed-or-after-september-16- 2012 ), or a cover letter identifying the application as a provisional application. Otherwise, the application will be treated as an application filed under 37 CFR 1.53(b). The filing fee is set forth in 37 CFR 1.16(d).
[Editor Note: Applicable to any patent application filed on or after September 16, 2012, and before December 18, 2013. See 35 U.S.C. 111 or 35 U.S.C. 111 (pre AIA) for the law otherwise applicable.]
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· (b) PROVISIONAL APPLICATION.—
· (1) AUTHORIZATION.—A provisional application for patent shall be made or authorized to be made by the inventor, except as otherwise provided in this title, in writing to the Director. Such application shall include—
· (A) a specification as prescribed by section 112(a); and
· (B) a drawing as prescribed by section 113.
· (2) CLAIM.—A claim, as required by subsections (b) through (e) of section 112, shall not be required in a provisional application.
· (3) FEE.—
· (A) The application must be accompanied by the fee required by law.
· (B) The fee may be submitted after the specification and any required drawing are submitted, within such period and under such conditions, including the payment of a surcharge, as may be prescribed by the Director.
· (C) Upon failure to submit the fee within such prescribed period, the application shall be regarded as abandoned, unless it is shown to the satisfaction of the Director that the delay in submitting the fee was unavoidable or unintentional.
· (4) FILING DATE.—The filing date of a provisional application shall be the date on which the specification and any required drawing are received in the Patent and Trademark Office.
· (5) ABANDONMENT.—Notwithstanding the absence of a claim, upon timely request and as prescribed by the Director, a provisional application may be treated as an application filed under subsection (a). Subject to section 119(e)(3), if no such request is made, the provisional application shall be regarded as abandoned 12 months after the filing date of such application and shall not be subject to revival after such 12-month period.
· (6) OTHER BASIS FOR PROVISIONAL APPLICATION.—Subject to all the conditions in this subsection and section 119(e), and as prescribed by the Director, an application for patent filed under subsection (a) may be treated as a provisional application for patent.
· (7) NO RIGHT OF PRIORITY OR BENEFIT OF EARLIEST FILING DATE.—A provisional application shall not be entitled to the right of priority of any other application under section 119 or 365(a) or to the benefit of an earlier filing date in the United States under sect
