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104 Power to Inspect Application [R-5] - 100 Secrecy, Access, National Security, and Foreign Filing
104 Power to Inspect Application [R-5]
37 CFR 1.14 Patent applications preserved in confidence.
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(c) Power to inspect a pending or abandoned application. Access to an application may be provided to any person if the application file is available, and the application contains written authority (e.g., a power to inspect) granting access to such person. The written authority must be signed by:
(1) An applicant;
(2) An attorney or agent of record;
(3) An authorized official of an assignee of record (made of record pursuant to § 3.71 of this chapter); or
(4) A registered attorney or agent named in the papers accompanying the application papers filed under § 1.53 or the national stage documents filed under § 1.495, if an executed oath or declaration pursuant to § 1.63 or § 1.497 has not been filed.
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If an executed oath or declaration pursuant to 37 CFR 1.63 or 1.497 has been filed, no person but the applicant (any one of joint applicants), an attorney or agent of record (if a power of attorney was filed), or an assignee whose assignment is of record, will be permitted to have access to the file of any pending application >kept in confidence under 35 U.S.C. 122(a)<, except as provided for under 37 CFR *>1.11 or 1.14<, former 37 CFR 1.62(f), or under the interference rules, unless written authority from one of the above indicated parties, identifying the application to be inspected and the name of the person authorized to have access, is made of record, or upon the written order of the Director, which will also become a part of the record of the application.
A person acting in a representative capacity under 37 CFR 1.34* may execute a power to inspect an application only if the attorney or agent was named in the application transmittal papers filed under 37 CFR 1.53 or the national stage documents filed under 37 CFR 1.495 and an executed oath or declaration has not been filed. Once an executed oath or declaration has been filed, any previously filed power to inspect signed by an registered attorney or agent who does not have a power of attorney will cease to have effect. For a discussion of power of attorney in an application, see MPEP § 402.
Approval by the primary examiner of a power to inspect is not required. The technical support staff of the Technology Center (TC) to which the application is assigned ascertains that the power is properly signed by one of the above indicated parties, and if acceptable, enters it into the file. If the power to inspect is unacceptable, notification of nonentry is written by the technical support staff to the person who signed the power.
When a power to inspect is received while a file is under the jurisdiction of a service branch, such as the Customer Services Division, the Service Branch of the Board of Patent Appeals and Interferences, and the Publishing Division of the Office of Patent Publication, the question of permission to inspect is decided by the head of the branch who, if he or she approves, indicates the approval directly on the power (in the "Office use only" section).
Powers to inspect are not accepted in Image File Wrapper (IFW) applications. IFW applications are available through the Private Patent Application Information Retrieval (PAIR) system, and pro se applicants and attorneys of record have direct access to the IFW through Private PAIR (when a Customer Number is associated with the correspondence address for the application, and the applicant or attorney has access to Private PAIR for the customer number). In **>addition<, IFW application files of published applications or patents **>are< available at least through Public PAIR. If for some reason an applicant, assignee, or attorney or agent of record cannot view an IFW application through PAIR, then a copy of the application must be purchased from the Office of Public Records.
A "power to inspect" is, in effect, the same as a "power to inspect and make copies."
Where an applicant relied on his or her application as a means to interfere with a competitor's business or customers, permission to inspect the application may be given the competitor by the Director. Ex parte Bonnie-B Co., 1923 C.D. 42, 313 O.G. 453, (Comm'r Pat. 1922). Such permission is via petition for access under 37 CFR 1.14(h).
An unrestricted power to inspect given by an applicant is, under existing practice, recognized as in effect until and unless rescinded. The same is true in the case of one given by the attorney or agent of record, or assignee so long as such attorney or agent, or assignee retains his or her connection with the application.
Permission to inspect given by the Director, however, is not of a continuing nature, since the conditions that justified the permission to inspect when given may not apply at a later date.
ACCESS TO PATENT APPLICATIONS (PROVISIONAL AND NONPROVISIONAL) AND INTERFERENCE FILES
In order to ensure that access to patent applications, other than applications that are available pursuant to 37 CFR 1.11 or 1.14, and interference files is given only to persons who are entitled thereto or who are specially authorized to have access under 37 CFR >1.11,< 1.14 >and 41.6< and to ensure also that the file record identifies any such specially authorized person who has been given access to a file, the following practice will be observed by all personnel of the U.S. Patent and Trademark Office:
(A) Access, as provided for in the rules, will be given on oral request to any applicant, patentee, assignee, or attorney or agent of record in an application or patent only upon proof of identity or upon recognition based on personal acquaintance.
(B) Where a power of attorney or authorization of agent was given to a registered firm prior to July 2, 1971, access will be given upon oral request as in paragraph (A) above to any registered member or employee of the firm who has signatory power for the firm.
(C) Unregistered employees of attorneys or agents, public stenographers, and all other persons not within the provisions of paragraphs (A) and (B) above will be given access only upon presentation of a written authorization for access (power to inspect) signed by a person specified in paragraph (A) above, which authorization will be entered as a part of the official file. The power to inspect must specifically name the person who is entitled to inspect and copy the application. An associate or representative of the named person is not entitled to access to the application on behalf of the authorized person. Further, the power to inspect must specifically identify the application by application number and be limited to a single application. Form PTO/SB/67 may be used for this purpose.
(D) In provisional applications, access or certified copies may only be requested by parties with written authority from a named inventor, the assignee of record, or the attorney or agent of record, unless the application is available pursuant to 37 CFR 1.14(a)(1)(iv)-(vi). Since provisional applications do not require an oath or declaration, there may be no power of attorney in the application. If the person requesting a certified copy is not a named inventor, assignee of record, or an attorney or agent of record, the requested certified copy will be supplied to the correspondence address of the provisional application.
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