MPEP § 713 — MPEP § 713
Current through: 2022-07-01

713-Interviews 
 
 

 
 
 
 
 
 
 
 

 

 
 
 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

 
 
 
 
 

 
 
 
 
 
 
 
 
 
 
 

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 Manual of Patent Examining Procedure 

 Chapter 0700 

 Section 713 
 

 
 
 
 
 
 713 Interviews [R-07.2022]

 Discussions between an applicant and an examiner are often indispensable to
 advance the prosecution of a patent application. Generally, interviews that improve the
 mutual understanding of specific issues in an application should be promoted. Properly
 conducted, an interview can bridge the gap between an examiner and an applicant with regard
 to the substantive matters at issue in an application. Interviews often help to advance
 prosecution and identify patentable subject matter. The applicant and the examiner should
 consider the advantages of conducting an interview to advance the prosecution of a
 particular patent application. Positions presented during an interview should be advanced
 with decorum and courtesy. 
 

 An interview should be granted when the nature of the case is
 such that the interview serves to develop or clarify outstanding issues in an application.
 Both applicants and examiners should understand that interview time is limited for both,
 and therefore they should use the interview time efficiently. Both parties should ensure
 the interview does not extend beyond a reasonable time and minimize interruptions during
 the interview. Applicants and examiners should facilitate the grouping of interviews where
 effective.
 

 All discussions between the applicant/practitioner and the
 examiner regarding the merits of a pending application will be considered an interview and
 are to be made of record. This includes any and all records or communications received in
 connection with the interview via any communication mode. This policy and other interview
 tips are detailed in the Interview Best Practices document which is available at
 www.uspto.gov/InterviewPractice . Where an electronic record is created
 as part of the interview, e.g., a series of electronic messages, a copy of the electronic
 record is to be made of record in the application. Where an electronic record is not
 created, a summary of the interview must be made of record.
 

 
 713.01 General Policy, How Conducted [R-01.2024]

 
 37 CFR 1.133 Interviews. 

 
 (a)
 
 (1) Interviews with examiners concerning applications and
 other matters pending before the Office must be conducted on Office
 premises and within Office hours, as the respective examiners may
 designate. Interviews will not be permitted at any other time or place
 without the authority of the Director.
 

 (2) An interview for the discussion of the patentability of a
 pending application will not occur before the first Office action, unless
 the application is a continuing or substitute application or the examiner
 determines that such an interview would advance prosecution of the
 application.
 

 (3) The examiner may require that an interview be scheduled
 in advance.
 

 
 

 (b) In every instance where reconsideration is requested in view of
 an interview with an examiner, a complete written statement of the reasons
 presented at the interview as warranting favorable action must be filed by the
 applicant. An interview does not remove the necessity for reply to Office
 actions as specified in §§ 1.111 and 1.135 .
 

 
 
 I. WHERE AND WHEN TO CONDUCT INTERVIEWS 
 i) Face-to-face interviews may be accomplished via
 video conferencing or in-person. The physical location of either party
 participating in an interview should not limit the USPTO’s ability to hold
 face-to-face interviews. A request for a face-to-face interview will normally
 be granted. Other times, a telephone interview provides an appropriate level of
 interaction. 
 

 ii) In-person interviews with the examiner should be
 granted if there is an opportunity for both parties to be on the same USPTO
 campus at a mutually agreeable time. If such an opportunity is not available,
 then a video conference should be offered. In-person interviews must be
 conducted on the Office premises, such as in an examiner’s office, a conference
 room, an interview room or a video conference center, and should be held during
 normal business hours of 8:30 a.m. – 5:00 p.m. Monday through Friday.
 

 iii) Interviews other than in-person interviews should
 be held during normal business hours and may also be held during mutually
 agreed upon non-traditional business hours, such as Saturday and evening
 hours.
 

 iv) When an examiner is working remotely from a USPTO
 campus, there may not be an opportunity to have an in-person interview. The
 examiner shall accommodate an applicant, attorney, or agent’s preference for an
 interview via telephone or electronic communication using USPTO web-based
 collaboration tools, consistent with the special requirements of section II.
 below. Alternatively, an applicant, attorney, or agent may request to have an
 interview on a USPTO campus while the examiner is remotely participating via
 the phone or video conference. In this instance, appropriate arrangements will
 be made on the USPTO campus for equipment and/or Internet access to facilitate
 the interview. Appropriate USPTO representative may be present with the
 applicant during the on campus interview.
 

 v) Any Examiner may, with the applicant’s consent,
 conduct an interview by video conferencing using the web-based collaboration
 tools provided by the Office.
 

 vi) Examiners who normally work remotely should
 arrange to hold an interview when on campus if there is an opportunity for all
 parties to be on the same USPTO campus at a mutually agreeable time. In special
 situations an examiner who normally works remotely will be required to travel
 to campus for an in-person interview. The decision on special situations will
 be made at the TC Director level or higher as to whether the examiner of record
 or another USPTO representative will be on campus for the interview. A hoteling
 examiner within the local commuting area of a satellite office may use that
 satellite office for in-person or video conference interviews.
 

 vii) Examiners working on campus may hold interviews
 via video conference, telephonically, or in-person. Examiners may receive
 requests from an applicant for an interview using video conferencing. Such
 requests should normally be granted. See MPEP § 713.01 , subsection III
 below. Telework does not prevent examiners from conducting interviews via video
 conference or telephonically from their approved alternate worksite.
 

 II. SPECIAL REQUIREMENTS FOR USING INTERNET COMMUNICATIONS Internet email, instant message system, or video conferencing shall
 NOT be used to conduct an exchange or communications similar to those exchanged
 during telephone or personal interviews unless authorization from the applicants or
 an attorney/agent of record has been given to use Internet communications. See
 MPEP §
 502.03 . 
 

 A. Written Authorization The following is a sample written authorization
 which may be used by applicant:
 

 
 “Recognizing that Internet communications are not
 secure, I hereby authorize the USPTO to communicate with the undersigned and
 practitioners in accordance with 37 CFR 1.33 and
 37 CFR
 1.34 concerning any subject matter of this application by
 video conferencing, instant messaging, or electronic mail. I understand that a
 copy of these communications will be made of record in the application
 file.”
 

 
 The Internet authorization must be submitted on a
 separate paper to be entitled to acceptance in accordance with 37 CFR
 1.4(c) . The separate paper will facilitate processing and
 avoid confusion.
 

 B. Oral Authorization The best practice is to have a written authorization
 of record in the file. However, an oral authorization from the
 applicant/practitioner is sufficient for video conferencing interviews. The oral
 authorization is limited to the arrangement of video conference interview
 (including the meeting invitation) and does not extend to other communications
 regarding the application. The examiner should note on the record the details of
 the oral authorization in the interview summary or in a separate
 communication.
 

 III. VIDEO CONFERENCING 
 i) A video conference is an electronic meeting,
 using USPTO web-based collaboration tools, to visually interact and collaborate
 with people anywhere in real time.
 

 ii) All video conferences for interviews MUST
 originate or be hosted by USPTO personnel. Examiners may not conduct interviews
 via video conferences hosted by applicants or third parties. The examiner
 assigned to the subject application should coordinate the video conference
 using USPTO web-based collaboration tools. 
 

 iii) When an applicant requests a video conference
 with an examiner, the request should normally be granted. When applicants
 request an in-person interview but there is not an opportunity for both parties
 to be on the same USPTO campus at a mutually agreed upon time, a video
 conference should be offered. All examiners, regardless of worksite location,
 should offer and hold interviews via video conferencing when appropriate.
 

 iv) Video conferencing should be conducted consistent
 with the special procedure of subsection II above. Authorization from the
 applicant, preferably written, should be obtained prior to scheduling and
 setting up a video conference. See MPEP § 502.03 .
 

 IV. SCHEDULING AND CONDUCTING AN INTERVIEW An interview should be arranged in advance to ensure that the primary
 examiner and/or the examiner in charge of the application will be available. Use of
 the USPTO’s Automated Interview Request (AIR) Form available at www.uspto.gov/
 InterviewPractice is encouraged, but in the alternative, the
 examiner may be contacted by letter, facsimile, electronic mail, telephone or the
 "Applicant Initiated Interview Request" form (PTOL-413A) to schedule the interview.
 The AIR form or the PTOL-413A form may be submitted to the examiner prior to the
 interview in order to permit the examiner to prepare in advance and to focus on the
 issues to be discussed. These forms should identify the participants of the
 interview, the proposed date of the interview, the communication mode (e.g.,
 telephonic, video conference, or in-person), and should include a brief description
 of the issues to be discussed. Upon completion of the interview, a copy of the
 completed Interview Summary form (PTOL-413/413b) should be given or mailed to the
 applicant (or applicant’s attorney or agent) along with any attachments. See
 MPEP §
 713.04 .
 

 When a second art unit is involved, such as in the case
 where approval of a Patentability Report is necessary, the availability of the second
 examiner should also be checked. See MPEP §§ 705 - 705.01(f) . An
 appointment for interview once arranged should be kept by examiner and applicant,
 attorney, or agent. When, after an appointment has been made, circumstances compel
 the absence of a party necessary to an effective interview (e.g., applicant,
 applicant’s representative, or examiner), the other party should be notified
 immediately so that substitute arrangements may be made.
 

 When a telephone call is received by an examiner and it becomes
 evident that a lengthy discussion will ensue or that the examiner needs time to
 restudy the situation, the call should be terminated with an agreement that the
 examiner will call back at a specified time. Such a call and all other calls
 originated by the examiner should be made by use of the Office’s equipment and
 software.
 

 An examiner’s suggestion of allowable subject matter
 may justify indicating the possibility of an interview to accelerate early agreement
 on allowable claims.
 

 The unexpected appearance of an attorney, agent, or applicant
 requesting an interview without any previous notice may well justify the examiner’s
 refusal of the interview at that time, particularly in an involved case.
 

 An interview should be had only when the nature of the case is such
 that the interview could serve to develop and clarify specific issues and lead to a
 mutual understanding between the examiner and the applicant, and thereby advance the
 prosecution of the application. 
 

 Thus, the attorney or agent should be fully prepared to
 discuss the issues raised in the Office action at the time of the interview. When it
 is obvious that the attorney or agent is not so prepared, the interview should be
 rescheduled. It is desirable that the attorney, agent, or applicant submit an agenda
 which indicates in advance what issues they desire to discuss at the interview by
 submitting, in writing, a proposed amendment or argument. This would permit the
 examiner to prepare in advance for the interview and to focus on the matters set
 forth in the proposed amendment.
 

 In order to have an effective interview, both parties
 should avoid unnecessary interruptions. Do not take incoming telephone calls, emails,
 or text messages unless an emergency. All parties participating in an interview
 should familiarize themselves with the status and existing issues in an application
 or reexamination proceeding before an interview.
 

 The examiner should not hesitate to state, when appropriate, that
 claims presented for discussion at an interview would require further search and
 consideration. Nor should the examiner hesitate to conclude an interview when it
 appears that no common ground can be reached or when it becomes apparent that the
 application requires further amendment or an additional action by the examiner.
 However, the examiner should attempt to identify issues and resolve differences
 during the interview as much as possible.
 

 It is the responsibility of all participants to see that the
 interview is not extended beyond a reasonable period, usually 30 minutes. It is the
 duty of the primary examiner to see that an interview is not extended beyond a
 reasonable period.
 

 During an interview with a pro se applicant (i.e., an applicant who
 is prosecuting their own case and is not familiar with Office procedure), the
 examiner may make suggestions that will advance the prosecution of this case; this
 lies wholly within the examiner’s discretion. Excessive time, however, should not be
 allowed for such interviews.
 

 Examiners should inspect all incoming papers. See
 MPEP §
 714.05 . Where a complete reply to a first action includes a
 request for an interview, the examiner, after consideration of the reply, should
 grant such an interview request if it appears that the interview would result in
 expediting the allowance of the application.
 

 Where agreement is reached as a result of an interview, applicant or
 applicant’s attorney or agent, as appropriate, should be advised that an amendment
 pursuant to the agreement should be promptly submitted.
 

 A duplicate copy of a filed amendment and/or remarks if
 filed in paper may be sent to the examiner in order to facilitate early
 consideration.
 

 A duplicate copy is unnecessary when the amendment
 and/or remarks are filed via the USPTO patent electronic filing system as the
 examiner will be able to quickly access such documents. See the Patent Center
 Resource page of the Office website ( www.uspto.gov/PatentCenter ) for additional information. See also
 MPEP §
 502.05 .
 

 The substance of any interview must be made of record in the
 application. See MPEP
 §§ 502.03 and 713.04 . A copy of any written
 communications or transcripts MUST be made and placed in the patent application file
 as required by the Federal Records Act in the same manner as an Examiner Interview
 Summary Form is entered.
 

 Examiners may grant an interview after final rejection.
 See MPEP §
 713.09 .
 

 V. VIEWING OF VIDEO DURING INTERVIEWS The USPTO has equipment available for viewing video from applicants
 during interviews with patent examiners.
 

 Attorneys or applicants wishing to show a video during an examiner
 interview must be able to demonstrate that the content of the video has a bearing on
 an outstanding issue in the application and its viewing will advance the prosecution
 of the application. If the video that applicant would like to display during the
 interview is in a format that USPTO equipment cannot display, the applicant should
 also bring to the interview the equipment necessary to display the video. The
 substance of the interview, including a summary of the content of the video must be
 made of record in the application. See MPEP § 713.04 .
 

 VI. EXAMINATION BY EXAMINER OTHER THAN THE ONE WHO CONDUCTED THE INTERVIEW Sometimes the examiner who conducted the interview is transferred to
 another Technology Center or resigns, and the examination is continued by another
 examiner. If there is an indication that an interview had been held, the second
 examiner should ascertain if any agreements were reached at the interview. Where
 conditions permit, as in the absence of a clear error or knowledge of other prior
 art, the second examiner should take a position consistent with the agreements
 previously reached. See MPEP § 812.01 for a statement of
 telephone practice in restriction and election of species situations.
 

 VII. COLLABORATION TOOLS Collaboration tools are the web-based tools provided by
 the USPTO and include multiple electronic communication tools such as video
 conferencing equipment and software. Examiners must only use USPTO-supplied equipment
 and software for interviews. All video conferences for interviews MUST originate or
 be hosted by USPTO personnel.
 

 

 

 

 

 
 713.02 Interviews Prior to First Official Action [R-07.2022]

 A request for an interview prior to the first Office action is
 ordinarily granted in continuing or substitute applications. In all other applications,
 an interview before the first Office action is encouraged where the examiner determines
 that such an interview would advance prosecution of the application. Thus, the examiner
 may require that an applicant requesting an interview before the first Office action
 provide a paper that includes a general statement of the state of the art at the time of
 the invention, an identification of no more than three (3) references believed to be the
 “closest” prior art, and an explanation as to how the broadest claim distinguishes over
 such references. See 37 CFR 1.133(a) . Applicants seeking prioritized examination
 should be prepared to participate in an interview with the examiner. See
 MPEP §
 708.02(b) . 
 

 I. SEARCHING IN GROUP Seeking search help in the Technology Center art unit should be
 permitted only with the consent of a primary examiner.
 

 II. EXPOUNDING PATENT LAW The U.S. Patent and Trademark Office cannot act as an expounder of
 the patent law, nor as a counselor for individuals.
 

 

 
 713.03 Interview for “Sounding Out” Examiner Not Permitted [R-08.2012]

 Interviews that are solely for the purpose of “sounding out” the
 examiner, as by a local attorney acting for an out-of-town attorney, should not be
 permitted when it is apparent that any agreement that would be reached is conditional
 upon being satisfactory to the principal attorney.
 

 

 
 713.04 Substance of Interview Must Be Made of Record [R-01.2024]

 A complete written statement as to the substance of any interview
 (including any electronic communication that discussed the merits of an application)
 must be made of record in the application, whether or not an agreement with the examiner
 was reached at the interview. The requirement may be satisfied by submitting a
 transcript generated during an electronic communication exchange. See 37 CFR 1.133(b) 
 and MPEP §§
 502.03 and 713.01 .
 

 
 37 CFR 1.133 Interviews. 

 *****

 
 (b) In every instance where reconsideration is requested in view of
 an interview with an examiner, a complete written statement of the reasons
 presented at the interview as warranting favorable action must be filed by the
 applicant. An interview does not remove the necessity for reply to Office
 actions as specified in §§ 1.111 and 1.135.
 

 
 

 
 37 CFR 1.2 Business to be transacted in writing. 

 All business with the Patent and Trademark Office should be
 transacted in writing. The personal attendance of applicants or their attorneys or
 agents at the Patent and Trademark Office is unnecessary. The action of the Patent
 and Trademark Office will be based exclusively on the written record in the Office.
 No attention will be paid to any alleged oral promise, stipulation, or understanding
 in relation to which there is disagreement or doubt.
 

 

 The action of the U.S. Patent and Trademark Office cannot be based
 exclusively on the written record in the Office if that record is itself incomplete
 through the failure to record the substance of interviews. Accordingly, examiners must
 complete an Interview Summary form for each interview where a matter of substance has
 been discussed during the interview. For an applicant-initiated interview, a complete
 written statement as to the substance of the interview must be made of record in the
 application file in the reply to an outstanding action or within the set period if no
 reply is outstanding. It is the responsibility of the applicant to make the substance of
 the interview of record in the application file, and it is the examiner’s responsibility
 to see that such a record is made and to correct material inaccuracies which bear
 directly on the question of patentability. For an examiner-initiated interview, it is
 the responsibility of the examiner to make the substance of the interview of record
 either on an Interview Summary form or, when the interview results in allowance of the
 application, by incorporating a complete record of the interview in an examiner’s
 amendment. The examiner should be sure to indicate whether it is necessary for the
 applicant to submit a substance of the interview. 
 

 An examiner may use form PTOL-413/413b to record the
 substance of an interview. A sample Interview Summary form (PTOL-413/413b) for an
 applicant-initiated interview is reproduced below.
 

 

 A sample Interview Summary form (PTOL-413/413b) for an
 examiner-initiated interview is reproduced below.
 

 

 See subsection I below for a list of the items to be included for
 complete and proper recordation of an interview. Discussions regarding only procedural
 matters, directed solely to restriction requirements for which interview recordation is
 otherwise provided for in MPEP § 812.01 , or pointing out typographical errors in Office
 actions or the like, are excluded from the interview recordation procedures.
 

 For both applicant-initiated and examiner-initiated
 interviews, it is recommended the examiner begin completing an Interview Summary form in
 advance of the interview by identifying the rejections, claims and prior art documents
 to be discussed. The examiner should complete the “Issues Discussed” portion of the
 Interview Summary form at the conclusion of the interview. Upon completion of the
 interview, a copy of the Interview Summary form (PTOL-413/413b) should be given or
 mailed to the applicant (or applicant’s patent practitioner) along with any
 attachments.
 

 The Interview Summary form shall include the date the interview was held
 and the substance of the interview shall be properly recorded. The applicant or the
 applicant’s patent practitioner, as appropriate, should be provided with a copy of the
 Interview Summary form either at the end of the interview or by mailing it to the
 applicant’s correspondence address either with or prior to the next official
 communication. A copy of the form may be faxed or, if the Office has appropriate
 authorization to conduct communications via the Internet, a copy of the form may be
 emailed to applicant (or applicant’s attorney or agent) at the conclusion of the
 interview. If additional correspondence from the examiner is not likely before an
 allowance or if other circumstances dictate, the Interview Summary form should be mailed
 promptly after the interview rather than with the next official communication.
 

 The Interview Summary form provides for recordation of the following
 information:
 

 
 (A) application number;

 (B) name of applicant;

 (C) name of examiner;

 (D) date of interview;

 (E) type of interview (telephonic, video conference, or
 in-person);
 

 (F) name of participant(s) (applicant, applicant’s representative,
 etc.);
 

 (G) detail all issues discussed;

 (H) an identification of any attachment; and 

 (I) the signature of the examiner who conducted the interview. 

 
 In the case of an applicant-initiated interview, the Interview Summary
 form will include a reminder indicating it is the applicant’s responsibility to record
 the substance of the interview in the reply to an outstanding action or within the set
 period if no reply is outstanding. It is desirable that the examiner also orally remind
 the applicant of the applicant’s obligation to record the substance of the interview in
 each case where the interview was not initiated by the examiner. Where an interview
 initiated by the applicant results in the allowance of the application, the applicant is
 advised to file a written record of the substance of the interview as soon as possible
 making of record the items listed below to prevent any possible delays in the issuance
 of a patent.
 

 I. ITEMS REQUIRED IN A COMPLETE AND PROPER SUMMARY The complete and proper recordation of the substance of any interview
 should include or be supplemented to include at least the following applicable
 items:
 

 
 (A) a brief description of the nature of any exhibit shown or any
 demonstration conducted;
 

 (B) identification of the claims discussed;

 (C) identification of specific prior art discussed;

 (D) identification of the principal proposed amendments of a
 substantive nature discussed (may refer to a copy attached to the Interview
 Summary form completed by the examiner);
 

 (E) the general thrust of the principal arguments of the applicant
 and the examiner should also be identified, even where the interview is
 initiated by the examiner. The identification of arguments need not be lengthy
 or elaborate. A verbatim or highly detailed description of the arguments is not
 required. The identification of the arguments is sufficient if the general
 nature or thrust of the principal arguments can be understood in the context of
 the application file. Of course, the applicant may desire to emphasize and
 fully describe those arguments which they feel were or might be persuasive to
 the examiner;
 

 (F) a general indication of any other pertinent matters discussed;
 
 

 (G) if appropriate, the general results or outcome of the
 interview; and
 

 (H) in the case of an interview via electronic mail, a copy of the
 contents exchanged over the Internet MUST be made and placed in the patent
 application file as required by the Federal Records Act in the same manner as
 an Examiner Interview Summary form is entered.
 

 II. EXAMINER TO CHECK FOR
 ACCURACY Examiners are expected to carefully review the applicant’s record of
 the substance of an interview. If the record is not complete or accurate, the
 examiner may give the applicant a 2-month time period to complete the reply under
 37 CFR
 1.135(c) where the record of the substance of the interview is
 in a reply to a non-final Office action.
 

 ¶ 7.84 Amendment Is Non-Responsive to Interview

 The reply filed on [1] is not fully responsive to the prior
 Office action because it fails to include a complete or accurate record of the substance of
 the [2] interview. [3] Since the above-mentioned reply appears to be
 bona fide, applicant is given a shortened statutory period of TWO
 (2) MONTHS from the mailing date of this notice within which to supply the omission
 or correction in order to avoid abandonment. EXTENSIONS OF THIS TIME PERIOD MAY BE GRANTED
 UNDER 37 CFR
 1.136(a) but in no case can any extension carry the date for reply to
 this letter beyond the maximum period of SIX MONTHS set by statute ( 35 U.S.C. 133 ).
 

 Examiner Note:
 
 1. In bracket 2, insert the date of
 the interview.
 

 2. In bracket 3, explain the
 deficiencies.
 
 
 

 Applicant’s summary of what took place at the interview should be
 carefully checked to ensure the accuracy of any argument or statement attributed to
 the examiner during the interview. If there is an inaccuracy and it bears directly on
 the question of patentability, it should be pointed out in the next Office
 communication from the examiner (e.g., rejection, interview summary, or notice of
 allowability), wherein the examiner should set forth an accurate version of the
 examiner's argument or statement.
 

 If the record is complete and accurate, the examiner should
 electronically annotate the record with the indication 
 "Interview
 record OK"
 
 
 on the paper recording the substance of the
 interview.
 

 

 
 713.05 Interviews Prohibited or Granted, Special Situations [R-01.2024]

 Except in unusual situations, interviews with examiners are not
 permitted after the submission of an appeal brief or after a notice of allowability for
 the application has been mailed.
 

 An interview may be appropriate before applicant’s first reply when the
 examiner has suggested that allowable subject matter is present or where it will assist
 applicant in judging the propriety of continuing the prosecution.
 

 Office employees are forbidden to hold either oral or written
 communication with an unregistered or a suspended or excluded attorney or agent
 regarding an application unless it is one in which said attorney or agent is the
 applicant. See MPEP §
 105 .
 

 Interviews ( MPEP § 713 ) are frequently requested by
 persons whose credentials are of such informal character that there is serious question
 as to whether such persons are entitled to any information under the provisions of
 37 CFR
 1.14 . In general, interviews are not granted to persons who lack
 proper authorization from the applicant or attorney or agent of record in the form of a
 submission on file in the application. A MERE POWER TO INSPECT IS NOT SUFFICIENT
 AUTHORITY FOR GRANTING AN INTERVIEW INVOLVING THE MERITS OF THE APPLICATION.
 

 Interviews are generally not granted to registered individuals to whom
 there is no power of attorney or authorization to act in a representative capacity.
 Registered practitioners, when acting in a representative capacity under
 37 CFR
 1.34 , can show authorization to conduct an interview by
 completing, signing and filing an Applicant Initiated Interview Request Form
 (PTOL-413A). This eliminates the need to file, and have accepted, a power of attorney
 before having an interview. However, an interview concerning an application that has not
 been published under 35 U.S.C. 122(b) with an attorney or agent not of record who
 obtains authorization through use of the interview request form will be conducted based
 on the information and files supplied by the attorney or agent in view of the
 confidentiality requirements of 35 U.S.C. 122(a) . See
 MPEP §
 405 . 
 

 Authorization to conduct an interview is not established
 merely by having previously filed a paper, such as a reply, in an application because
 the filing of a paper is only a representation of being authorized to act in a
 representative capacity with respect to that particular filing. Design patent
 practitioners can only act as a representative in design patent matters, to include
 conducting interviews. See MPEP §§ 402.04 and
 1502.02 .
 

 Note that pursuant to 37 CFR
 11.106 , a practitioner cannot authorize other registered
 practitioners to conduct interviews unless the client gives informed consent.
 Furthermore, even with informed consent, a practitioner should not authorize a
 nonpractitioner to conduct interviews as this could be considered aiding in the
 unauthorized practice of law. See 37 CFR 11.505 .
 

 While a registered practitioner not of record may request an interview
 (if the practitioner is authorized to do so by the applicant or the attorney of record),
 it is recommended that a power of attorney, Applicant Initiated Interview Request Form
 (PTOL-413A), or authorization to act in a representative capacity be filed, preferably
 electronically, prior to the interview.
 

 Interviews normally should not be granted unless the requesting party
 has authority to bind the principal concerned. The use of the provisions of
 37 CFR
 1.34 by a third party or its representative to conduct an
 interview, or take other action not specifically permitted by the rules of practice in
 an application for patent, will be considered a violation of 37 CFR 11.18 and
 may result in disciplinary action if done by a practitioner. See MPEP § 410 for a
 discussion of violations of 37 CFR 11.18 .
 

 For an interview with an examiner who does not have negotiation
 authority, arrangements should always include an examiner who does have such authority,
 and who is familiar with the application, so that authoritative agreement may be reached
 at the time of the interview.
 

 GROUPED INTERVIEWS For attorneys remote from the Washington, D.C. area who prefer
 in-person or video conference interviews, the grouped interview practice is
 effective. Where agreement is reached as a result of an interview, applicant or
 applicant’s attorney or agent, as appropriate, should be advised that an amendment
 pursuant to the agreement should be promptly submitted.
 

 

 
 713.06 No Inter Partes Questions Discussed
 Ex Parte [R-08.2012]
 

 The examiner may not discuss inter partes questions
 ex parte with any of the interested parties. 
 

 

 
 713.07 Exposure of Other Cases [R-07.2022]

 Prior to an interview, the examiner should ensure that all files,
 drawings and other papers, except those necessary in the interview, are out of view. See
 MPEP §
 101 .
 

 

 
 713.08 Demonstration, Exhibits, Models [R-07.2015]

 The invention in question may be exhibited or demonstrated during the
 interview by a model or exhibit thereof. A model or exhibit will not generally be
 admitted as part of the record of an application. See 37 CFR 1.91 .
 However, a model or exhibit submitted by the applicant which complies with
 37 CFR
 1.91 would be made part of the application record. See
 MPEP §§
 608.03 and 608.03(a) .
 

 If the model or exhibit is merely used for demonstration purpose during
 the course of the interview, it will not be made part of the record (does not comply
 with 37 CFR
 1.91 ). A full description as to what was demonstrated/exhibited
 must be made of record in the application. See 37 CFR 1.133(b) . Demonstrations of
 apparatus or exhibits too large to be brought into the Office may be viewed by the
 examiner outside of the Office (in the Washington, D.C. area) with the approval of the
 supervisory patent examiner. It is presumed that the witnessing of the demonstration or
 the reviewing of the exhibit is actually essential in the developing and clarifying of
 the issues involved in the application.
 

 

 
 713.09 Interviews Between Final Rejection and Notice of
 Appeal [R-08.2017]
 

 Normally, one interview after final rejection is permitted in order to
 place the application in condition for allowance or to resolve issues prior to appeal.
 However, prior to the interview, the intended purpose and content of the interview
 should be presented briefly, preferably in writing. Such an interview may be granted if
 the examiner is convinced that disposal or clarification for appeal may be accomplished
 with only nominal further consideration. Interviews merely to restate arguments of
 record or to discuss new limitations which would require more than nominal
 reconsideration or new search should be denied. See MPEP § 714.13 .
 

 Interviews may be held after the expiration of the shortened statutory
 period and prior to the maximum permitted statutory period of 6 months without an
 extension of time. See MPEP § 706.07(f) .
 

 A second or further interview after a final rejection may be held if the
 examiner is convinced that it will expedite the issues for appeal or disposal of the
 application.
 

 For interviews after notice of appeal, see
 MPEP §
 1204.03 .
 

 

 
 713.10 Interview Preceding Filing Amendment Under 37 CFR
 1.312 [R-08.2012]
 

 After an application is sent to issue, it is technically no longer under
 the jurisdiction of the primary examiner. 37 CFR 1.312 . An interview with an
 examiner that would involve a detailed consideration of claims sought to be entered and
 perhaps entailing a discussion of the prior art for determining whether or not the
 claims are allowable should not be given. Obviously an applicant is not entitled to a
 greater degree of consideration in an amendment presented informally than is given an
 applicant in the consideration of an amendment when formally presented, particularly
 since consideration of an amendment filed under 37 CFR 1.312 cannot be demanded as a
 matter of right.
 

 Requests for interviews on cases where a notice of allowance has been
 mailed should be granted only with specific approval of the Technology Center Director
 upon a showing in writing of extraordinary circumstances.
 

 

 [top] 

 

 

 
 

 
 

 

 

 

 
 
 
 701-Statutory Authority for Examination 

 702-Requisites of the Application 
 702.01-Obviously Informal Cases 

 
 

 703-[Reserved] 

 704-Search and Requirements for Information 
 704.01-Search 

 704.02-704.09-[Reserved] 

 704.10-Requirements for Information 

 704.11-What Information May Be Required 
 704.11(a)-Examples of Information Reasonably Required 

 704.11(b)-When May a Requirement for Information Be Made 

 
 

 704.12-Replies to a Requirement for Information 
 704.12(a)-Relationship of Requirement for Information to Duty of Disclosure 

 704.12(b)-What Constitutes a Complete Reply 

 704.12(c)-Treatment of an Incomplete Reply 

 
 

 704.13-Time Periods for Reply 

 704.14-Making a Requirement for Information 
 704.14(a)-Format of the Requirement 

 704.14(b)-Examiner’s Obligation Following Applicant’s Reply 

 704.14(c)-Petitions to Requirements Under 37 CFR 1.105 

 704.14(d)-Relationship to Information Disclosure Statements 

 
 

 
 

 705-Patentability Reports 
 705.01-Instructions re Patentability Reports 
 705.01(a)-Nature of P.R., Its Use and Disposal 

 705.01(b)-Sequence of Examination 

 705.01(c)-Counting and Recording P.R.s 

 705.01(d)-[Reserved] 

 705.01(e)-Limitation as to Use 

 705.01(f)-Interviews With Applicants 

 
 

 
 

 706-Rejection of Claims 
 706.01-Contrasted With Objections 

 706.02-Rejection on Prior Art 
 706.02(a)-[Reserved] 
 706.02(a)(1)-[Reserved] 

 706.02(a)(2)-[Reserved] 

 
 

 706.02(b)-[Reserved] 
 706.02(b)(1)-[Reserved] 

 706.02(b)(2)-[Reserved] 

 
 

 706.02(c)-[Reserved] 
 706.02(c)(1) -[Reserved] 

 706.02(c)(2)-[Reserved] 

 
 

 706.02(d)-[Reserved] 

 706.02(e)-[Reserved] 

 706.02(f)-[Reserved] 
 706.02(f)(1)-[Reserved] 

 706.02(f)(2)-[Reserved] 

 
 

 706.02(g)-[Reserved] 

 706.02(h)-[Reserved] 

 706.02(i)-[Reserved] 

 706.02(j)-[Reserved] 

 706.02(k)-[Reserved] 

 706.02(l)-[Reserved] 
 706.02(l)(1)-[Reserved] 

 706.02(l)(2)-[Reserved] 

 706.02(l)(3)-[Reserved] 

 
 

 706.02(m)-[Reserved] 

 706.02(n)-[Reserved] 

 
 

 706.03-Rejections Not Based on Prior Art 
 706.03(a)-[Reserved] 

 706.03(b)-[Reserved] 

 706.03(c)-[Reserved] 

 706.03(d)-[Reserved] 

 706.03(e)-[Reserved] 

 706.03(f) - 706.03(j)-[Reserved] 

 706.03(k)-[Reserved] 

 706.03(l) - 706.03(n)-[Reserved] 

 706.03(o)-[Reserved] 

 706.03(p) - 706.03(r)-[Reserved] 

 706.03(s)-[Reserved] 

 706.03(t)-[Reserved] 

 706.03(u)-[Reserved] 

 706.03(v)-[Reserved] 

 706.03(w)-[Reserved] 

 706.03(x)-[Reserved] 

 706.03(y)-[Reserved] 

 
 

 706.04-Rejection of Previously Allowed Claims 

 706.05-Rejection After Allowance of Application 

 706.06-Rejection of Claims Copied From Patent 

 706.07-Final Rejection 
 706.07(a)-Final Rejection, When Proper on Second Action 

 706.07(b)-Final Rejection, When Proper on First Action 

 706.07(c)-Final Rejection, Premature 

 706.07(d)-Final Rejection, Withdrawal of, Premature 

 706.07(e)-Withdrawal of Final Rejection, General 

 706.07(f)-Time for Reply to Final Rejection 

 706.07(g)-Transitional After-Final Practice 

 706.07(h)-Request for Continued Examination (RCE) Practice 

 
 

 
 

 707-Examiner’s Letter or Action 
 707.01-Primary Examiner Indicates Action for New Assistant 

 707.02-Applications Up for Third Action and 5-Year Applications 

 707.03‑707.04-[Reserved] 

 707.05-Citation of References 
 707.05(a)-Copies of Cited References 

 707.05(b)-Citation of Related Art and Information by Applicants 

 707.05(c)-Order of Listing 

 707.05(d)-Reference Cited in Subsequent Actions 

 707.05(e)-Data Used in Citing References 

 707.05(f)-Non-Patent Documents Having a Lengthy Citation 

 707.05(g)-Incorrect Citation of References 

 
 

 707.06-Citation of Decisions, Orders Memorandums, and Notices 

 707.07-Completeness and Clarity of Examiner’s Action 
 707.07(a)-Complete Action on Formal Matters 

 707.07(b) - 707.07(c)-[Reserved] 

 707.07(d)-Language To Be Used in Rejecting Claims 

 707.07(e)-Note All Outstanding Requirements 

 707.07(f)-Answer All Material Traversed 

 707.07(g)-Piecemeal Examination 

 707.07(h)-Notify of Inaccuracies in Amendment 

 707.07(i)-Each Claim To Be Mentioned in Each Office Action 

 707.07(j)-State When Claims Are Allowable 

 707.07(k)-Numbering Paragraphs 

 707.07(l)-Comment on Examples 

 
 

 707.08-Reviewing and Initialing by Assistant Examiner 

 707.09-Signing by Primary or Other Authorized Examiner 

 707.10-Entry 

 707.11-Date 

 707.12-Mailing 

 707.13-Returned Office Action 

 
 

 708-Order of Examination 
 708.01-List of Special Cases 

 708.02-Petition To Make Special 
 708.02(a)-Accelerated Examination 

 708.02(b)-Prioritized Examination 

 708.02(c)-Patent Prosecution Highway Program 

 
 

 708.03-Examiner Tenders Resignation 

 
 

 709-Suspension of Action 
 709.01-Overlapping Applications by Same Applicant or Owned by Same Assignee 

 
 

 710-Period for Reply 
 710.01-Statutory Period 
 710.01(a)-Statutory Period, How Computed 

 
 

 710.02-Shortened Statutory Period and Time Limit Actions Computed 
 710.02(a)-[Reserved] 

 710.02(b)-Shortened Statutory Period: Situations in Which Used 

 710.02(c)-Specified Time Limits: Situations in Which Used 

 710.02(d)-Difference Between Shortened Statutory Periods for Reply and Specified Time Limits 

 710.02(e)-Extension of Time 

 
 

 710.03-[Reserved] 

 710.04-Two Periods Running 
 710.04(a)-Copying Patent Claims 

 
 

 710.05-Period Ending on Saturday, Sunday, or a Federal Holiday 

 710.06-Situations When Reply Period Is Reset or Restarted 

 
 

 711-Abandonment of Patent Application 
 711.01-Express or Formal Abandonment 

 711.02-Failure To Take Required Action During Statutory Period 
 711.02(a)-Insufficiency of Reply 

 711.02(b)-Special Situations Involving Abandonment 

 711.02(c)-Termination of Proceedings 

 
 

 711.03-Reconsideration of Holding of Abandonment; Revival 
 711.03(a)-Holding Based on Insufficiency of Reply 

 711.03(b)-Holding Based on Failure To Reply Within Period 

 711.03(c)-Petitions Relating to Abandonment 

 711.03(d)-Examiner’s Statement on Petition To Set Aside Examiner’s Holding 

 
 

 711.04-Public Access to Abandoned Applications 
 711.04(a)-Date of Abandonment 

 711.04(b)-Ordering of Patented and Abandoned Files 

 711.04(c)-Notifying Applicants of Abandonment 

 
 

 711.05-Letter of Abandonment Received After Application Is Allowed 

 711.06-Abstracts, Abbreviatures, and Defensive Publications 
 711.06(a)-Citation and Use of Abstracts, Abbreviatures, and Defensive Publications as References 

 
 

 
 

 712-[Reserved] 

 713-Interviews 
 713.01-General Policy, How Conducted 

 713.02-Interviews Prior to First Official Action 

 713.03-Interview for “Sounding Out” Examiner Not Permitted 

 713.04-Substance of Interview Must Be Made of Record 

 713.05-Interviews Prohibited or Granted, Special Situations 

 713.06-No Inter Partes Questions Discussed Ex Parte 

 713.07-Exposure of Other Cases 

 713.08-Demonstration, Exhibits, Models 

 713.09-Interviews Between Final Rejection and Notice of Appeal 

 713.10-Interview Preceding Filing Amendment Under 37 CFR 1.312 

 
 

 714-Amendments, Applicant’s Action 
 714.01-Signatures to Amendments 
 714.01(a)-Unsigned or Improperly Signed Amendment 

 714.01(b)-[Reserved] 

 714.01(c)-Signed by Attorney or Agent Not of Record 

 714.01(d)-Amendment Signed by Applicant but Not by Attorney or Agent of Record 

 714.01(e)-Amendments Before First Office Action 

 
 

 714.02-Must Be Fully Responsive 

 714.03-Amendments Not Fully Responsive, Action To Be Taken 
 714.03(a)-Supplemental Amendment 

 
 

 714.04-Claims Presented in Amendment With No Attempt To Point Out Patentable Novelty 

 714.05-Examiner Should Immediately Review 

 714.06-[Reserved] 

 714.07-Amendments Not in Permanent Ink 

 714.08-714.09-[Reserved] 

 714.10-Claims Added in Excess of Claims Previously Paid For 

 714.11-Amendment Filed During Interference Proceedings 

 714.12-Amendments and Other Replies After Final Rejection or Action 

 714.13-Amendments and Other Replies After Final Rejection or Action, Procedure Followed 

 714.14-Amendments After Allowance of All Claims 

 714.15-Amendment Received in Technology Center After Mailing of Notice of Allowance 

 714.16-Amendment After Notice of Allowance, 37 CFR 1.312 
 714.16(a)-Amendments Under 37 CFR 1.312, Copied Patent Claims 

 714.16(b)-Amendments Under 37 CFR 1.312 Filed With a Motion Under 37 CFR 41.208 

 714.16(c)-Amendments Under 37 CFR 1.312, Additional Claims 

 714.16(d)-Amendments Under 37 CFR 1.312, Handling 

 714.16(e)-Amendments Under 37 CFR 1.312, Entry in Part 

 
 

 714.17-Amendment Filed After the Period for Reply Has Expired 

 714.18-Entry of Amendments 

 714.19-List of Amendments, Entry Denied 

 714.20-List of Amendments Entered in Part 

 714.21-Amendments Inadvertently Entered, No Legal Effect 

 714.22-714.24-[Reserved] 

 714.25-Discourtesy of Applicant or Attorney 

 
 

 715-Swearing Behind a Reference — Affidavit or Declaration Under 37 CFR 1.131(a) 
 715.01-37 CFR 1.131(a) Affidavits Versus 37 CFR 1.132 Affidavits 
 715.01(a)-Reference Is a Patent or Published Application Naming Different Inventive Entity With at Least One Common Inventor 

 715.01(b)-Reference and Application Have Common Assignee 

 715.01(c)-Reference Is Publication of Inventor’s Own Invention 

 715.01(d)-Activities Applied Against the Claims 

 
 

 715.02-How Much of the Claimed Invention Must Be Shown, Including the General Rule as to Generic Claims 

 715.03-Genus-Species, Practice Relative to Cases Where Predictability Is in Question 

 715.04-Who May Make Affidavit or Declaration Under 37 CFR 1.131(a); Formal Requirements of Affidavits and Declarations 

 715.05-U.S. Patent or Application Publication Claiming Same Invention 

 715.06-[Reserved] 

 715.07-Facts and Documentary Evidence 
 715.07(a)-Diligence 

 715.07(b)-Interference Testimony Sometimes Used 

 715.07(c)-Acts Relied Upon Must Have Been Carried Out in This Country or a NAFTA or WTO Member Country 

 715.07(d)-Disposition of Exhibits 

 
 

 715.08-Decided by Primary Examiner 

 715.09-Timely Presentation 

 715.10-Review of Affidavit or Declaration for Evidence of Prior Public Use or Sale or Failure to Disclose Best Mode 

 
 

 716-Affidavits or Declarations Under 37 CFR 1.132 and Other Evidence Traversing Rejections 
 716.01-Generally Applicable Criteria 
 716.01(a)-Objective Evidence of Nonobviousness 

 716.01(b)-Nexus Requirement and Evidence of Nonobviousness 

 716.01(c)-Probative Value of Objective Evidence 

 716.01(d)-Weighing Objective Evidence 

 
 

 716.02-Allegations of Unexpected Results 
 716.02(a)-Evidence Must Show Unexpected Results 

 716.02(b)-Burden on Applicant 

 716.02(c)-Weighing Evidence of Expected and Unexpected Results 

 716.02(d)-Unexpected Results Commensurate in Scope With Claimed Invention 

 716.02(e)-Comparison With Closest Prior Art 

 716.02(f)-Advantages Disclosed or Inherent 

 716.02(g)-[Reserved] 

 
 

 716.03-Commercial Success 
 716.03(a)-Commercial Success Commensurate in Scope With Claimed Invention 

 716.03(b)-Commercial Success Derived From Claimed Invention 

 
 

 716.04-Long-Felt Need and Failure of Others 

 716.05-Skepticism of Experts 

 716.06-Copying 

 716.07-Inoperability of References 

 716.08-Utility and Operability of Applicant’s Disclosure 

 716.09-Sufficiency of Disclosure 

 716.10-Attribution Affidavit or Declaration to Overcome Rejection Under Pre-AIA 35 U.S.C. 102 or 103 

 
 

 717-Prior Art Exceptions under AIA 35 U.S.C. 102(b)(1) and (2) 
 717.01-Affidavit or Declaration Under 37 CFR 1.130 
 717.01(a) -Declarations or Affidavits under 37 CFR 1.130(a) – Attribution 
 717.01(a)(1) -Evaluation of Declarations or Affidavits under 37 CFR 1.130(a) 

 
 

 717.01(b) -Declarations or Affidavits under 37 CFR 1.130(b) – Prior Public Disclosure 
 717.01(b)(1) -Evaluation of Declarations or Affidavits under 37 CFR 1.130(b) 

 717.01(b)(2) -Determining if the Subject Matter of the Intervening Disclosure is the Same as the Subject Matter of the Inventor–Originated
 Prior Public Disclosure 

 
 

 717.01(c) -Who May Make Affidavit or Declaration; Formal Requirements of Affidavits and Declarations 

 717.01(d)-U.S. Patent or Application Publication Claiming Same Invention 

 717.01(e) -Passed Upon (or Decided by) by Primary Examiner 

 717.01(f) -Seasonable (or Timely) Presentation 

 
 

 717.02 -Prior Art Exception for Commonly Owned or Joint Research Agreement Subject Matter under AIA 35 U.S.C. 102(b)(2)(C) 
 717.02(a) -Invoking the Prior Art Exception under 35 U.S.C. 102(b)(2)(C) 

 717.02(b) -Evaluating Whether the Prior Art Exception under AIA 35 U.S.C. 102(b)(2)(C) is Properly Invoked 

 717.02(c) -Examination Procedure With Respect to the Prior Art Exception under AIA 35 U.S.C. 102(b)(2)(C) 

 717.02(d) -Form Paragraphs With Respect to the Prior Art Exception under AIA 35 U.S.C. 102(b)(2)(C) 

 
 

 
 

 718-Affidavit or Declaration to Disqualify Commonly Owned Patent as Prior Art, 37 CFR 1.131(c) 

 719-File Wrapper 
 719.01-Papers in Image File Wrapper 

 719.02-Residence of Inventor Changed 

 719.03-Classification During Examination 

 719.04-Index of Claims 

 719.05-Field of Search 

 
 

 720-Public Use Proceedings 

 721‑723-[Reserved] 

 724-Trade Secret, Proprietary, and Protective Order Materials 
 724.01-Completeness of the Patent File Wrapper 

 724.02-Method of Submitting Trade Secret, Proprietary, and/or Protective Order Materials 

 724.03-Types of Trade Secret, Proprietary, and/or Protective Order Materials Submitted Under MPEP § 724.02 

 724.04-Office Treatment and Handling of Materials Submitted Under MPEP § 724.02 
 724.04(a)-Materials Submitted in an Application Covered by 35 U.S.C. 122 

 724.04(b)-Materials Submitted in Reissue Applications Open to the Public Under 37 CFR 1.11(b) 

 724.04(c)-Materials Submitted in Reexamination File Open to the Public Under 37 CFR 1.11(d) 

 
 

 724.05-Petition To Expunge Information or Copy of Papers in Application File 

 724.06-Handling of Petitions To Expunge Information or Copy of Papers in Application File 

 
 

 

 

 
 

 
 
 

 
 

 

 
 
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