Federal Register / Vol. 86, No. 124 / Thursday, July 1, 2021 / Notices 35073 

DATES: Written, telefaxed, or email 

comments must be received on or before 

August 2, 2021. 

ADDRESSES: These documents are 

available upon written request via email 

to NMFS.Pr1Comments@noaa.gov. 

Written comments on this application 

should be submitted via email to 

NMFS.Pr1Comments@noaa.gov. Please 

include File No. 25761 in the subject 

line of the email comment. 

Those individuals requesting a public 

hearing should submit a written request 

via email to NMFS.Pr1Comments@

noaa.gov. The request should set forth 

the specific reasons why a hearing on 

this application would be appropriate. 

FOR FURTHER INFORMATION CONTACT: 

Shasta McClenahan, Ph.D. or Sara 

Young, (301) 427–8401. 

SUPPLEMENTARY INFORMATION: The 

subject permit is requested under the 

authority of the Marine Mammal 

Protection Act of 1972, as amended 

(MMPA; 16 U.S.C. 1361 et seq.) and the 

regulations governing the taking and 

importing of marine mammals (50 CFR 

part 216). 

The applicant proposes to film 

pinnipeds in Washington for a film 

about the foraging and hunting behavior 

of harbor seals (Phoca vitulina). 

Pinnipeds may be filmed from land, an 

unmanned aircraft system, and 

underwater via a stationary camera, pole 

camera, or snorkelers. Up to 450 harbor 

seals and 90 California sea lions 

(Zalophus californianus) may be filmed 

annually. The permit would be valid for 

two years. 

In compliance with the National 

Environmental Policy Act of 1969 (42 

U.S.C. 4321 et seq.), an initial 

determination has been made that the 

activity proposed is categorically 

excluded from the requirement to 

prepare an environmental assessment or 

environmental impact statement. 

Concurrent with the publication of 

this notice in the Federal Register, 

NMFS is forwarding copies of the 

application to the Marine Mammal 

Commission and its Committee of 

Scientific Advisors. 

Dated: June 28, 2021. 

Julia Marie Harrison, 

Chief, Permits and Conservation Division, 

Office of Protected Resources, National 

Marine Fisheries Service. 

[FR Doc. 2021–14043 Filed 6–30–21; 8:45 am] 

BILLING CODE 3510–22–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

[RTID 0648–XB198] 

Caribbean Fishery Management 

Council; Public Meeting 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Notice of public meeting. 

SUMMARY: The Caribbean Fishery 

Management Council (CFMC) will hold 

the 174th public meeting (virtual) to 

address the items contained in the 

tentative agenda included in the 

SUPPLEMENTARY INFORMATION. 

DATES: The 174th CFMC public meeting 

(virtual) will be held on July 21, 2021, 

from 9 a.m. to 4 p.m. The meeting will 

be at AST (U.S. Caribbean time, 

presently same as EST). 

ADDRESSES: You may join the 174th 

CFMC public meeting (virtual) via 

Zoom, from a computer, tablet or 

smartphone by entering the following 

address: 

Join Zoom Meeting: https://

us02web.zoom.us/j/83060685915?pwd=

VmVsc1orSUtKck8xYk1XOXNDY1

ErZz09. 

Meeting ID: 830 6068 5915. 

Passcode: 995658. 

One tap mobile: 

+17879451488,,83060685915#,,,,,,0#,,

995658# Puerto Rico 

+17879667727,,83060685915#,,,,,,0#,,

995658# Puerto Rico 

Dial by your location: 

+1 787 945 1488 Puerto Rico 

+1 787 966 7727 Puerto Rico 

+1 939 945 0244 Puerto Rico 

Meeting ID: 830 6068 5915. 

Passcode: 995658. 

In case there are problems and we 

cannot reconnect via Zoom, the meeting 

will continue using GoToMeeting. 

You can join the meeting from your 

computer, tablet or smartphone. https:// 

global.gotomeeting.com/join/

971749317. You can also dial in using 

your phone. United States: +1 (408) 

650–3123, Access Code: 971–749–317. 

FOR FURTHER INFORMATION CONTACT: 

Miguel A. Rolo ́n, Executive Director, 

Caribbean Fishery Management Council, 

270 Mun ̃ oz Rivera Avenue, Suite 401, 

San Juan, Puerto Rico 00918–1903, 

telephone: (787) 398–3717. 

SUPPLEMENTARY INFORMATION: The 

following items included in the 

tentative agenda will be discussed: 

July 21, 2021 

9 a.m.–9:30 a.m. 

—Call to Order 

—Roll Call 

—Adoption of Agenda 

—Consideration of 173nd Council 

Meeting Verbatim Transcriptions 

—Executive Director’s Report 

9:30 a.m.–10:30 a.m. 

—Five year Strategic Plan 

Presentation—Dr. M. Duval 

10:30 a.m.–11 a.m. 

—Update on Fishery Ecosystem Plan 

Stakeholder Engagement 

Workshops—Dr. M. Duval 

11 a.m.–11:30 p.m. 

—SSC Report—Dr. Richard Appeldoorn 

11:30 a.m.–12 p.m. 

—Closed Seasons for Certain Species— 

Dr. Mitchell Scharer 

12 p.m.–1 p.m. 

—Lunch 

1 p.m.–1:30 p.m. 

—Draft Tech Memo on Managing with 

ACLs for Data-Limited Stocks. 

1:30 p.m.–2 p.m. 

—Enforcement Issues with Nassau 

Grouper and other Fish Species in St. 

Thomas/St. John, USVI 

2 p.m.–2:30 p.m. 

—DAP Chairs Report on Buoy Gear 

Federal Regulations 

2:30 p.m.–4 p.m. 

—Other Business 

—Capt. Silva’s Letter on Deepwater 

Snapper Grouper Fishery (Letter in 

Spanish to be Read into the Record for 

Translation) 

—Public Comment Period (5 minutes 

each) 

—Next Council Meetings 

—Adjourn 

Note (1): Other than starting time and dates 

of the meetings, the established times for 

addressing items on the agenda may be 

adjusted as necessary to accommodate the 

timely completion of discussion relevant to 

the agenda items. To further accommodate 

discussion and completion of all items on the 

agenda, the meeting may be extended from, 

or completed prior to the date established in 

this notice. Changes in the agenda will be 

posted to the CFMC website, Facebook, 

Twitter and Instagram as practicable. 

Note (2): Financial disclosure forms are 

available for inspection at this meeting, as 

per 50 CFR part 601. 

The order of business may be adjusted 

as necessary to accommodate the 

completion of agenda items. The 


khammond on DSKJM1Z7X2PROD with NOTICES
35074 Federal Register / Vol. 86, No. 124 / Thursday, July 1, 2021 / Notices 

meeting will begin on July 21, 2021, at 

9 a.m. AST, and will end on July 21, 

2021, at 4 p.m. AST. Other than the start 

time on the first day of the meeting, 

interested parties should be aware that 

discussions may start earlier or later 

than indicated in the agenda, at the 

discretion of the Chair. 

Special Accommodations 

Simultaneous interpretation will be 

provided. 

For simultaneous interpretation 

English-Spanish-English follow your 

Zoom screen instructions. You will be 

asked which language you prefer when 

you join the meeting. 

For any additional information on this 

public virtual meeting, please contact 

Diana Martino, Caribbean Fishery 

Management Council, 270 Mun ̃ oz 

Rivera Avenue, Suite 401, San Juan, 

Puerto Rico, 00918–1903, telephone: 

(787) 226–8849. 

Authority: 16 U.S.C. 1801 et seq. 

Dated: June 25, 2021. 

Tracey L. Thompson, 

Acting Deputy Director, Office of Sustainable 

Fisheries, National Marine Fisheries Service. 

[FR Doc. 2021–14005 Filed 6–30–21; 8:45 am] 

BILLING CODE 3510–22–P 

DEPARTMENT OF COMMERCE 

Patent and Trademark Office 

[Docket No.: PTO–P–2021–0020] 

Properly Presenting Prophetic and 

Working Examples in a Patent 

Application 

AGENCY: United States Patent and 

Trademark Office, Department of 

Commerce. 

ACTION: Notice. 

SUMMARY: The United States Patent and 

Trademark Office (USPTO) is reminding 

applicants that patent applications must 

properly present examples in a manner 

that clearly distinguishes between 

prophetic examples that describe 

predicted experimental results and 

working examples that report actual 

experimental results. The distinction 

must be clear to satisfy the written 

description and enablement 

requirements and comply with the 

applicant’s duty of disclosure. 

FOR FURTHER INFORMATION CONTACT: Ali 

Salimi, Senior Legal Advisor, at 571– 

272–0909, and Raul Tamayo, Senior 

Legal Advisor, at 571–272–7728, both 

with the Office of Patent Legal 

Administration, Office of the Deputy 

Commissioner for Patents, USPTO. 

SUPPLEMENTARY INFORMATION: The 

USPTO is reminding patent applicants 

of their duty to ensure that patent 

applications are written in a manner 

that clearly distinguishes prophetic 

examples with predicted experimental 

results from working examples with 

actual experimental results. 

Prophetic Versus Working Examples 

Prophetic examples, also called paper 

examples, are typically used in a patent 

application to describe reasonably 

expected future or anticipated results. 

Prophetic examples describe 

experiments that have not in fact been 

performed. Rather, they are presented in 

a manner that forecasts simulated or 

predicted results. In contrast, working 

examples correspond to work performed 

or experiments conducted that yielded 

actual results. The Manual of Patent 

Examining Procedure (MPEP) states that 

prophetic examples should not be 

described using the past tense. MPEP 

608.01(p), subsection II. Prophetic 

examples may be written in future or 

present tense. This drafting technique 

assists readers in differentiating 

between actual working examples and 

prophetic examples. 

Written Description and Enablement 

Requirements 

To be complete, the contents of a 

patent application must include a 

specification containing a written 

description of the invention that enables 

any person skilled in the art or science 

to which the invention pertains to make 

and use the invention as of its filing 

date. See 35 U.S.C. 112(a). At least one 

specific operative embodiment or 

example of the invention must be set 

forth. The example(s) and description 

should be sufficient to justify the scope 

of the claims. MPEP 608.01(p). The 

specification need not contain an 

example if the invention is otherwise 

disclosed in such a manner that one 

skilled in the art will be able to practice 

it without an undue amount of 

experimentation. In re Borkowski, 422 

F.2d 904, 908, 164 USPQ 642, 645 

(CCPA 1970). See MPEP 2164.02. 

The courts have sanctioned the use of 

prophetic examples to meet the written 

description and enablement 

requirements for a patent application. 

See, e.g., Allergan, Inc. v. Sandoz Inc., 

796 F.3d 1293, 1310 (Fed. Cir. 2015) 

(‘‘efficacy data are generally not 

required in a patent application’’ and ‘‘a 

patentee is not required to provide 

actual working examples’’). A patent 

application does not need to provide a 

guarantee that a prophetic example 

actually works. Id. at 1310. ‘‘Only a 

sufficient description enabling a person 

of ordinary skill in the art to carry out 

an invention is needed.’’ Id. The courts 

have further cautioned that the presence 

of prophetic examples alone should not 

be the basis for asserting that a 

specification is not enabling; rather, a 

lack of operative embodiments and 

undue experimentation should be 

determinative. Atlas Powder Co. v. E.I. 

du Pont De Nemours & Co., 750 F.2d 

1569, 1577 (Fed. Cir. 1984). 

Disclosed results of tests and 

examples, whether working or prophetic 

examples, in a patent application are 

not normally questioned unless there is 

a reasonable basis for doing so. 

However, when prophetic examples are 

described in a manner that is ambiguous 

or that implies that the results are 

actual, the adequacy and accuracy of the 

disclosure may come into question. If 

the characterization of the results, when 

taken in light of the disclosure as a 

whole, reasonably raises any questions 

as to whether the results from the 

examples are actual, the examiner will 

determine whether to reject the 

appropriate claims based on an 

insufficient disclosure under the 

enablement and/or written description 

requirements of 35 U.S.C. 112(a) 

following the guidance in MPEP 2164 

and 2163, respectively. When such a 

rejection(s) is made, the applicant may 

reply with the results of an actual test 

or example that has been conducted, or 

by providing relevant arguments and/or 

declaration evidence that there is strong 

reason to believe that the result would 

be as predicted, being careful not to 

introduce new matter into the 

application. MPEP 707.07(l) and 2161– 

2164.08(c). 

Applicant’s Duty of Disclosure 

Care should be taken to see that 

inaccurate or misleading statements, 

inaccurate evidence, or inaccurate 

experiments are not introduced into the 

record. MPEP 2004 sets forth best 

practices to avoid duty of disclosure 

problems (see, in particular, MPEP 

2004, item 8). As noted above, prophetic 

examples should not be described using 

the past tense. Hoffmann-La Roche, Inc. 

v. Promega Corp., 323 F.3d. 1354, 1367 

(Fed. Cir. 2003) (improperly identifying 

a prophetic example in the past tense 

validly raises an inequitable conduct 

issue based on the intent of the 

inventors in drafting the example in the 

past tense, when the example, in fact, is 

prophetic). Knowingly asserting in a 

patent application that a certain result 

‘‘was run’’ or an experiment ‘‘was 

conducted’’ when, in fact, the 

experiment was not conducted or the 

result was not obtained is fraud. Apotex 

Inc. v. UCB, Inc., 763 F.3d 1354, 1362 


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