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See also Policy
and Procedures
| PETITION INFORMATION: |
(703) 305-9282 |
FAX (703)
308-6916 |
DELEGATION OF AUTHORITY
It is through section
6(a) of title 35 of the United States Code (U.S.C.) that the Commissioner
of the United States Patent and Trademark Office (PTO) can "establish
regulations, not inconsistent with law, for the conduct of proceedings
in the Patent and Trademark Office." Through the establishment of
the Rules of Practice, title 37 of the Code of Federal Regulations (CFR),
and the issuance of orders, notices and memoranda stating PTO policies,
the Commissioner exercises his authority to manage the PTO. For those
patent matters which are not subject to an appeal to the Board of Patent
Appeals and Interferences (BPAI) and the federal courts, supervisory and
administrative review is conducted, in part, by the rendering of decisions
on petitions. In as much as the Commissioner cannot possibly personally
consider all maters pertaining to the exercise of his supervisory authority,
and in the interest of orderly administration of matters within the PTO,
the Commissioner has authorized various PTO officials to act on his behalf
in deciding certain petitions. 37 CFR 1.181 (g) provides the basis for
the delegation of authority to various patent officials to decide these
petitions for the Commissioner. See Chapter 1000 of the Manual of Patent
Examining Procedure (MPEP) for the current delegation of authority.
SCOPE
In order for a request
or petition to constitute a petition to the Commissioner relating to a
patent matter, it must be classified under either 37 CFR 1.181 (Petition
to the Commissioner), 37 CFR 1.182 (Questions not specifically provided
for) or 37 CFR 1.183 (Suspension of rules).
REQUIREMENTS OF A
PETITION
In general each petition
has five (5) requirements. These requirements are as follows:
| 1. The petition
must be in writing, 37 CFR 1.2. |
All business
with the PTO is transacted in writing. The petition should be directed
to the PTO official delegated the authority to decide that type
of petition. MPEP chapter 1000.
It is noted
that different matters may be considered by different branches or
sections of the PTO. Therefore, each distinct subject, inquiry or
order should be contained in a separate paper to avoid confusion
and delay in answering papers dealing with different subjects. 37
CFR 1.4(c).
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| 2. The petition
must contain a statement of facts involved, the point(s) to be reviewed
and the action requested, 37 CFR 1.181(b). |
The care and
completeness with which petitions are drafted can clearly influence
the decision rendered. 37 CFR 1.181(b) sets forth the general requirements
for the content of a petition. The petition must contain a statement
of the facts involved, the point(s) to be reviewed and the action
or relief requested. The petition submitted should be in as complete
condition as possible, that is, any and all evidence necessary should
be submitted, and any error(s) in a requirement or action on the
part of the PTO should be clearly set forth with the reasons why
such requirement or action is considered improper. A complete statement
of the relevant facts should also be presented.
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| 3. The petition
must be accompanied by a fee, if required, in order to avoid the petition
being summarily dismissed, 37 CFR 1.181(d). |
To avoid a petition
being summarily dismissed for lack or insufficient fee, a general
authorization to charge petitioner's/counsel's deposit account in
the PTO is recommended.
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| 4. The petition
must be timely filed, as required in 37 CFR 1.181(f), or as required
in a specific statute or regulation. |
Generally a
petition not filed within two (2) months from the action complained
of may be dismissed as untimely. Further, the mere filing of a petition
will not stay the period for replying to an examiner's action that
may be running against an application or act as a stay of other
proceedings. 37 CFR 1.181(f).
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| 5. The petition
must comply with any specific requirements as provided by statute,
regulation or PTO policy. |
Care should
be taken to review the applicable statute, regulation or PTO policy
to determine if there are other requirements that need to be met
in submitting the petition.
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