MPEP § 2809 — MPEP § 2809
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2809-Items of Information 
 
 

 
 
 
 
 
 
 
 

 

 
 
 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

 
 
 
 
 

 
 
 
 
 
 
 
 
 
 
 

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 Manual of Patent Examining Procedure 

 Chapter 2800 

 Section 2809 
 

 
 
 
 
 
 2809 Items of Information [R-11.2013]

 
 37 CFR 1.605 Items of information. 

 
 (a) Each request for supplemental examination may
 include no more than twelve items of information believed to be relevant to the
 patent. More than one request for supplemental examination of the same patent may
 be filed at any time during the period of enforceability of the patent. 
 

 (b) An item of information includes a document
 submitted as part of the request that contains information, believed to be
 relevant to the patent, that the patent owner requests the Office to consider,
 reconsider, or correct. If the information to be considered, reconsidered, or
 corrected is not, at least in part, contained within or based on any document
 submitted as part of the request, the discussion within the body of the request
 relative to the information will be considered as an item of information.
 

 (c) An item of information must be in writing in
 accordance with § 1.2 . To be considered, any audio or video recording must
 be submitted in the form of a written transcript.
 

 (d) If one item of information is combined in the
 request with one or more additional items of information, each item of information
 of the combination may be separately counted. Exceptions include the combination
 of a non-English language document and its translation, and the combination of a
 document that is over 50 pages in length and its summary pursuant to
 §
 1.610(b)(8) .
 

 
 

 An 
 "item of
 information"
 
 
 includes a document submitted as part of a supplemental
 examination request that contains information believed to be relevant to the patent, that
 the patent owner is requesting the Office to consider, reconsider, or correct. See
 37 CFR
 1.605(b) . Patent owners are encouraged to draft the supplemental
 examination request to clearly and consistently set forth the items of information the
 patent owner wishes the Office to consider, reconsider, or correct. 
 

 I. LIMIT ON THE NUMBER OF ITEMS OF INFORMATION SUBMITTED AS PART OF A SINGLE
 REQUEST Each request for supplemental examination may include no
 more than twelve items of information believed to be relevant to the patent. See
 37 CFR
 1.605(a) . 37 CFR 1.605(a) also permits the
 filing of more than one request for supplemental examination of the same patent at any
 time during the period of enforceability of the patent. Therefore, patent owner is not
 precluded from obtaining review of any item of information despite the twelve-item
 limit, because the patent owner may file one or more additional requests for
 supplemental examination of the same patent sequentially or at the same time, each of
 which may include up to twelve additional items of information. 
 

 II. REQUIREMENTS FOR AN ITEM OF INFORMATION An item of information must be in writing. In most cases,
 an 
 "item of information"
 
 
 is a separate document
 submitted as part of the request. Under certain conditions, however, an “item of
 information” may be contained within the body of the request. 
 

 A. An Item of Information Must Be in Writing 37 CFR
 1.605(c) requires that an item of information must be in
 writing in accordance with 37 CFR 1.2 . The Office does not
 currently have the capability of retaining records in unwritten form. For this
 reason, any audio or video recording must be submitted in the form of a written
 transcript in order to be considered. A transcript of a video may be submitted
 together with copies of selected images of the video, and a discussion of the
 correlation between the transcript and the copies of the video images. See also
 MPEP
 § 2807 regarding the format requirements for papers
 submitted in a supplemental examination proceeding.
 

 B. An Item of Information Must Be Submitted as a Separate Document, Where
 Applicable In most cases, an item of information is a separate
 document submitted with the request which contains information relevant to the patent
 that the patent owner wants the Office to consider, reconsider, or correct. Examples
 of an item of information that must be submitted as a separate document include a
 journal article, a patent, an affidavit or declaration, a sales receipt, a foreign
 search report, a copy of a page of a dictionary containing a definition, a court
 document, and a transcript of an audio or video recording. However, if the item of
 information is a U.S. patent or a U.S. patent application publication, a copy is not
 required, but may be submitted. See 37 CFR 1.610(b)(7) .
 

 C. When an Item of Information May be Contained within the Body of the
 Request If the information to be considered, reconsidered, or
 corrected is not, at least in part, contained within or based on a supporting
 document submitted as part of the request, the discussion within the body of the
 request relative to that information will be considered as the item of information.
 For example, if the patent owner requests the Office to consider claim 1 of the
 patent on the basis of 35 U.S.C. 101 , and the discussion
 of any potential application of 35 U.S.C. 101 to claim 1 is
 wholly contained within the body of the request and is not based, at least in part,
 on any supporting document, the discussion in the request will be considered as the
 item of information. Another example of an item of information that may be contained
 within the request is an admission by patent owner that certain facts or claim
 limitations were known at the time of the invention. 
 

 The patent owner may not avoid counting an item of
 information by inserting the content of the supporting document within the body of
 the request. For example, if the patent owner presents an image of a supporting
 document, such as an image of an electronic mail message or other document, within
 the body of the request, then a separate copy of the supporting document must be
 provided. The separate copy of the item will be considered as the item of
 information. 
 

 III. HOW ITEMS OF INFORMATION ARE COUNTED When counting the number of items of information
 submitted with a request for supplemental examination, the Office will tally the number
 of items of information, such as documents, presented. 
 

 The Office will not count the number of issues raised by,
 or the number of grounds which the patent owner requests the Office to consider, when
 determining the number of items of information. A single reference that raises multiple
 issues under multiple grounds, for example, under 35 U.S.C.
 102 , 35 U.S.C. 103 , and 35 U.S.C. 112 ,
 will be counted as a single item of information. However, if the patent owner cites a
 combination of multiple references under 35 U.S.C. 103 , then each reference
 of the combination will be separately counted as an item of information. 
 

 For example, if the patent owner states that the claims
 are patentable under 35 U.S.C. 103 over the combination
 of reference A in view of reference B, then references A and B must be separately listed
 as items of information, and will be counted as two items. If, however, a single item of
 information, such as a reference patent, raises a potential issue under
 35 U.S.C.
 102 as to claim 1 and another potential issue under
 35 U.S.C.
 103 as to claim 2, the reference patent will nevertheless be
 counted as a single item of information. The Office will count the number of items of
 information, but will not count the number of issues potentially raised by each
 item.
 

 As another example, if the patent owner relies upon
 different abstracts bound together in a book of meeting abstracts, it is likely that the
 Office will treat each abstract as a separate item of information. In this example, the
 Office suggests that the patent owner cite and rely upon only the particular abstracts
 that are relevant to the patent and not cite an entire book of meeting abstracts. 
 

 Cumulative items of information will each be separately
 counted. For example, if the patent owner indicates that reference A is cumulative to
 reference B, references A and B will be counted as two items of information. If the
 patent owner believes that multiple items of information are cumulative to each other,
 the patent owner is encouraged to select one or two documents as the items of
 information that will be submitted with the request.
 

 If a discussion within the body of the request is based,
 at least in part, on a supporting document, then the supporting document, and not the
 discussion within the request, will be counted as the item of information. For example,
 if the patent owner discusses a potential public use or sale of the claimed invention,
 and also submits a supporting document, such as a sales invoice, with the request as
 possible evidence of a public use or sale, or the lack thereof, then the supporting
 document (e.g., the sales invoice), and not the discussion within the body of the
 request, will be considered as an item of information.
 

 A declaration or affidavit submitted as part of a request
 would be considered an item of information. However, if the declaration presents two
 distinct items of information, such as information relating to a potential ground under
 35 U.S.C.
 101 as to patent claim 1 that was not considered during the prior
 examination of the patent, and information relating to erroneous facts or data presented
 during the prior examination of the patent with respect to an issue under
 35 U.S.C.
 103 as to patent claim 10, then each item of information contained
 within the declaration will be counted separately, resulting in two items of
 information. 
 

 The patent owner may not avoid the counting of multiple
 items of information by inserting the multiple items within the body of a declaration or
 by presenting them as exhibits accompanying the declaration. If the declaration presents
 one item of information, such as information regarding erroneous data presented during
 the prior examination of the patent with respect to an issue under 35 U.S.C.
 103 as to a particular patent claim (such as, e.g., claim 10), and
 relies upon a single exhibit, such as a new table of data, to support facts presented in
 the declaration, the Office is likely to count the declaration, including the supporting
 exhibit, as a single item of information. If, however, the declaration relies upon two
 separate and distinct exhibits, then each exhibit may be counted separately. For
 example, if the declaration relies upon two separate and distinct sales receipts as
 evidence of a potential sale of the invention ( e.g., a sales receipt
 dated March 2011, and a second, separate sales receipt dated October 2011, which
 provides evidence of a second, separate sale of the invention), then each additional
 sales receipt will be counted separately, resulting in two items of information (one
 item consisting of the declaration and one sales receipt, and the second item consisting
 of the second sales receipt). As another example, if the declaration relies not only
 upon a sales receipt (e.g., exhibit 1) as evidence of a sale of the invention under
 35 U.S.C.
 102 , but also upon a reference patent (e.g., exhibit 2) as
 evidence of a potential ground under 35 U.S.C. 103 , then each additional
 exhibit will be counted separately. In this example, the declaration and the sales
 receipt will be counted as a first item of information and the reference patent will be
 counted as a second item of information.
 

 37 CFR
 1.605(d) provides that if an item of information is combined in
 the request with one or more additional items of information, each item of information
 of the combination may be separately counted. If it is necessary to combine items of
 information in order to raise an issue, or to explain the relevance of the items of
 information to be considered, reconsidered, or corrected with respect to the identified
 claims, each item of information may be separately counted. For example, if the patent
 owner requests consideration of claim 1 of a patent in light of references A and B, and
 explains that it is the combination of references A and B that is relevant to claim 1,
 reference A and reference B must be separately listed as items of information, and will
 be counted as two items of information.
 

 Exceptions to this provision include the combination of a
 non-English language document and its translation, and the combination of a document
 that is over 50 pages in length and its summary pursuant to 37 CFR
 1.610(b)(8) .
 

 IV. INFORMATION THAT SHOULD NOT BE SUBMITTED WITH THE REQUEST Petitions should not be submitted with the request.
 Petitions including, for example, petitions for unintentionally delayed foreign priority
 or domestic benefit claims (see MPEP § 2809.01 ), should only
 be filed after reexamination is ordered . If a petition is filed in a
 supplemental examination proceeding, it will generally be held in abeyance until after
 the issuance of the supplemental examination certificate. See 37 CFR
 1.620(b) and MPEP § 2813 . If the Office determines
 that a substantial new question of patentability is raised by the request, any petition
 held in abeyance will be addressed in due course after reexamination is ordered. If,
 however, the Office determines that no substantial new question of patentability is
 raised by the request, any petition held in abeyance will be dismissed as moot.
 

 In addition, amendments to the patent may not be
 submitted with the request. No amendment may be filed in a supplemental examination
 proceeding. 37 CFR 1.620(f) . Any paper containing an amendment that is filed
 in a supplemental examination proceeding is an unauthorized paper, and will be expunged
 from the file if inadvertently entered. If reexamination is ordered, amendments may be
 filed after an initial Office action on the merits in the resulting
 reexamination proceeding . See MPEP §
 2813.01 . 
 

 
 2809.01 Information Relating to the Correction of Factual
 Information [R-11.2013]
 

 In a request for supplemental examination, the patent
 owner may inform the Office of factual information believed to be relevant to the
 patent, which the patent owner wishes to correct. The factual information to be
 corrected may include, for example, a missing or erroneous foreign priority or benefit
 claim, or missing or erroneous information relating to the common ownership of the
 claimed invention. The item of information may be, for example, a patent document
 relating to the factual information, such as a priority document or parent patent in the
 case of a missing or erroneous foreign priority or domestic benefit claim, a declaration
 under 37 CFR
 1.132 limited to a discussion of the factual information to be
 corrected, or, if no supporting document is submitted with the request, a discussion
 within the body of the request relating to the correction of the factual
 information.
 

 However, if the patent owner merely wishes to amend the
 patent file in order to correct factual information, the patent owner should file a
 reissue application or a request for certificate of correction, where appropriate. See
 MPEP §§
 1402 and 1405 . If the patent owner only desires
 to correct the inventorship, the patent owner should file a request for a certificate of
 correction under the provisions of 35 U.S.C. 256 and 37 CFR 1.324 , or,
 alternatively, the patent owner may file a reissue application. See
 MPEP §§
 1402 , 1412.04 , and 1481.02 . Correction
 of inventorship may also be made, if desired, in an ex parte 
 reexamination proceeding. See MPEP § 2258 , subsection IV.F. If the
 information that the patent owner wishes to correct is only of a clerical or
 typographical nature, or of a minor character within the meaning of 35 U.S.C. 255 and
 37 CFR
 1.323 , the patent owner should file a request for certificate of
 correction rather than a supplemental examination request. See, e.g., MPEP §
 1481 . 
 

 A deletion of an earlier-obtained domestic benefit claim
 in a supplemental examination proceeding or any resulting reexamination proceeding (or,
 for that matter, in any post-patent Office proceeding) will not 
 operate to extend the term of the patent.
 

 I. SUPPLEMENTAL EXAMINATION IS LIMITED TO A DETERMINATION OF WHETHER THE REQUEST
 RAISES A SUBSTANTIAL NEW QUESTION OF PATENTABILITY A supplemental examination proceeding is limited to a
 determination of whether the information properly submitted as part of the request
 raises a substantial new question of patentability (SNQ). See 35 U.S.C.
 257(a) . 
 

 However, an item of information
 limited to a correction of factual information, alone, may
 not raise a substantial new question of patentability . For example, an
 item of information limited to the correction of a missing or erroneous foreign
 priority or domestic benefit claim, alone, generally will not raise an issue of
 patentability. In order for the correction of a foreign priority or domestic benefit
 claim to raise a substantial new question of patentability, the request for
 supplemental examination should also include one or more additional item(s) of
 information, such as one or more intervening reference(s), that would cause the
 patentability of the claims under, e.g., 35 U.S.C. 102 or
 103 , to depend upon the foreign priority or
 domestic benefit claim. In such an instance, the item of information may raise a SNQ,
 depending upon whether the foreign priority or domestic benefit
 claim is or is not corrected. See MPEP § 2816.02
 for a further discussion of whether a document raises a SNQ
 depending upon the correction of a foreign priority or domestic benefit claim.
 Similarly, information limited to the correction of other factual information, such
 as the common ownership of the claims, alone, may not raise a SNQ, in the absence of
 one or more additional item(s) of information that would cause the patentability of
 the claims to depend upon the issue of common ownership. 
 

 If the Office determines that no SNQ is raised by the
 request, the supplemental examination proceeding concludes with the issuance of a
 supplemental examination certificate, indicating that no SNQ is raised. See
 35
 U.S.C. 257(a) , 37 CFR 1.620(a) , and
 37 CFR
 1.625(a) . Because no SNQ is raised by the request, ex
 parte reexamination is not ordered. In such an instance, the factual
 information cannot be corrected because the procedure for making the correction of
 the factual information is the reexamination that would have been ordered, had the
 Office determined that a SNQ was raised in the request. In other words, the patent
 owner may inform the Office of factual information to be corrected during the
 supplemental examination proceeding, and thus request supplemental examination
 
 "to correct information believed to be relevant to the
 patent"
 
 
 in accordance with 35 U.S.C.
 257(a) . However, in the absence of information in the request
 that raises a SNQ, there is no opportunity to make the correction. Thus, the
 supplemental examination proceeding will not result in any correction to the patent.
 In such cases, the patent owner may wish to file a reissue application, a certificate
 of correction, or other proceeding, as applicable, in order to have the information
 corrected. See, e.g., MPEP §§
 1402 , 1405 and 1481 .
 

 If, however, the Office determines that the request
 raises a SNQ, reexamination will be ordered. See 35 U.S.C.
 257(b) and 37 CFR 1.625(b) . The factual
 information may be corrected during the resulting reexamination proceeding in
 accordance with ex parte reexamination practice. For example,
 corrections may be made during the resulting reexamination
 proceeding by filing, where appropriate, an amendment after the initial
 Office action on the merits (see MPEP § 2813.01 ), or a petition for
 an unintentionally delayed foreign priority or domestic benefit claim (see
 MPEP §
 2258 , subsection IV.E.). 
 

 When analyzing a request for supplemental examination,
 the Office will only consider the item(s) of information provided by the patent
 owner. The Office will not initiate supplemental examination of the patent
 in view of any item of information that was not requested by the patent owner to
 be considered, reconsidered or corrected . For example, any prior art
 of record in the patent file, that is not properly submitted
 as one or more additional item(s) of information in the request, will
 not , in general, be considered during the supplemental
 examination proceeding, except to determine whether the item(s) of information
 properly submitted with the request are cumulative to the prior art of record.
 Furthermore, a request for supplemental examination 
 "of all of the
 patent claims"
 
 
 solely in view of the 
 "the
 factual information to be corrected"
 
 
 , without more, is
 improper. The patent owner is effectively requesting reconsideration of all of the
 patent claims in view of all prior art in existence (or, at a minimum, all of the
 prior art of record). Each prior art document, however, would be considered as a
 separate item of information. Such a request would be improper because it would not
 comply with the requirements of, for example, 37 CFR
 1.610(b) . It would fail to include, e.g., (a) a separate list
 of each prior art document as an item of information; (b) a copy of each item of
 information, where appropriate; c) a separate, detailed explanation of the relevance
 and manner of applying each prior art document to every claim
 for which supplemental examination is requested, etc. In addition,
 
 "all prior art in existence"
 
 
 is likely to
 include more than twelve items of information. See MPEP §
 2811 for discussion of the required elements of a
 supplemental examination request as set forth in 37 CFR
 1.610(b) .
 

 In summary, the patent owner may inform the Office of
 factual information to be corrected during the supplemental examination proceeding,
 and thus request supplemental examination 
 "to correct information
 believed to be relevant to the patent"
 
 
 in accordance with
 35
 U.S.C. 257(a) . However, in the absence of information in the
 request that raises a SNQ, the supplemental examination proceeding will not result in
 a corrected patent. Any correction may only be made during a resulting reexamination
 proceeding, which is only initiated if the supplemental examination proceeding
 concludes with a determination that a SNQ was raised. For these reasons, the patent
 owner should include with the request, as one or more additional items of
 information, evidence that the patentability of the claims depends
 upon the factual information to be corrected. Such evidence may include,
 for example, one or more intervening references.
 

 II. RECOMMENDED INFORMATION TO BE SUBMITTED WITH THE REQUEST The Office recommends that any request for
 supplemental examination, that includes an item of information limited to the
 correction of factual information, should also include one or more additional item(s)
 of information that potentially provide evidence that the patentability of the claims
 depends upon the factual information to be corrected. 
 

 For example, where the information to be corrected is a
 foreign priority or domestic benefit claim, the Office recommends that the patent
 owner include in the request, as one or more additional item(s) of information, any
 documents or other information, such as an intervening patent or printed publication,
 that caused the patent owner to reconsider the effective filing date of the claims.
 The effective date of some of the claims in a patent which resulted from a continuing
 application under 35 U.S.C. 120 , for example, could
 be the filing date of the continuing application since those claims were not
 supported in the parent application. Therefore, intervening patents or printed
 publications may be available as prior art. See, e.g., In re
 Ruscetta, 255 F.2d 687, 118 USPQ 101 (CCPA 1958), In re van
 Langenhoven, 458 F.2d 132, 173 USPQ 426 (CCPA 1972). See also
 MPEP §
 211.05 . Similarly, where the information to be corrected
 involves, for example, the common ownership of the claims, the patent owner should
 include with the request one or more additional items of information that cause(s)
 the patentability of the claims to depend upon the common ownership issue, such any
 prior art or other documents or information that caused the patent owner to
 reconsider the common ownership of the claims.
 

 Alternatively, the patent owner may include in the
 request one or more additional items of information which are unrelated to the
 factual information to be corrected, but which raise a SNQ. For example, the patent
 owner may include, in addition to information limited to the correction of a domestic
 benefit claim, an item of information such as a reference patent that would qualify
 as prior art under 35 U.S.C. 102 even if the
 domestic benefit claim is corrected.
 

 III. INFORMATION THAT SHOULD NOT BE SUBMITTED WITH THE REQUEST See MPEP §
 2809 , subsection IV. Petitions should not be submitted with
 the request. Petitions including, for example, petitions for unintentionally delayed
 foreign priority or domestic benefit claims, should only be filed after
 reexamination is ordered . See MPEP §
 2809.01 . In addition, amendments to the patent may not be
 submitted with the request. No amendment may be filed in a supplemental examination
 proceeding. 37 CFR 1.620(f) . If reexamination
 is ordered, amendments may be filed after an initial Office action on the
 merits in the resulting reexamination proceeding . See
 MPEP §
 2813.01 .
 

 See MPEP §
 2816.02 , subsection II, for a further discussion of
 situations where a SNQ is or is not raised, when the request includes information
 limited to the correction of factual information. 
 

 

 [top] 

 

 

 
 

 
 

 

 

 

 
 
 
 2801-Introduction 

 2802-Supplemental Examination 

 2803-Persons Who May File a Request for Supplemental Examination 
 2803.01-Inquiries from Persons Other Than the Patent Owner 

 2803.02-Public Access 

 
 

 2804-Representative of Patent Owner 
 2804.01-Withdrawal of Attorney or Agent 

 
 

 2805-Correspondence with Patent Owner; Patent Owner Address 

 2806-How to File Papers in a Supplemental Examination Proceeding and in Any Resulting Ex Parte Reexamination Proceeding 

 2807-Format of Papers Filed in a Supplemental Examination Proceeding 

 2808-Time for Requesting Supplemental Examination 

 2809-Items of Information 
 2809.01-Information Relating to the Correction of Factual Information 

 
 

 2810-Fees Due on Filing a Supplemental Examination Request 
 2810.01-Document Size Fees 

 
 

 2811-Content of Request for Supplemental Examination 
 2811.01 -Detailed Explanation of the Relevance and Manner of Applying Each Item of Information 

 2811.02 -Optional Content 

 
 

 2812-Initial Processing of a Request for Supplemental Examination 
 2812.01 -Filing Date of the Request 

 2812.02-Noncompliant Request for Supplemental Examination 

 2812.03 -Corrected Request 

 2812.04 -Termination Due to Defective/Improper Request or Corrected Request 

 
 

 2813-Handling of Papers, Other Than a Request, in a Supplemental Examination Proceeding 
 2813.01 -Amendments 

 
 

 2814-Interviews Are Prohibited 

 2815-Time for Deciding Request 

 2816-Determination on the Request 
 2816.01 -Claims Considered in Making the Determination 

 2816.02 -Criteria for Making the Determination 

 2816.03 -Content of the Determination 

 2816.04 -Effect of the Determination 

 
 

 2817-Conclusion of Supplemental Examination 
 2817.01 -Processing and Electronic Issuance of Supplemental Examination Certificate 

 
 

 2818-Procedure after Conclusion of Supplemental Examination 
 2818.01 -After Determination Finding a Substantial New Question of Patentability 

 2818.02 -After Determination Finding No Substantial New Question of Patentability 

 
 

 2819-Discovery of Possible Material Fraud 

 2820-Submission of Notification of Other Prior or Concurrent Post-Patent Office Proceedings 

 2821-Multiple Post-Patent Office Proceedings 

 2822-Assignment of the Supplemental Examination Proceeding 

 2823-Differences Between an Ex Parte Reexamination Proceeding Ordered Pursuant to 35 U.S.C. 257 and an Ex Parte Reexamination Proceeding
 Ordered Pursuant to 35 U.S.C. 302 

 

 

 
 

 
 
 

 
 

 

 
 
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 Last Modified: 
 
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