MPEP § 103 — MPEP § 103
Current through: 2022-07-01

103-Right of Public To Inspect Patent Files and Some Application Files 
 
 

 
 
 
 
 
 
 
 

 

 
 
 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

 
 
 
 
 

 
 
 
 
 
 
 
 
 
 
 

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 Manual of Patent Examining Procedure 

 Chapter 0100 

 Section 103 
 

 
 
 
 
 
 103 Right of Public To Inspect Patent Files and Some Application Files [R-07.2022]

 
 37 CFR 1.11 Files open to the public. 

 
 (a) The specification, drawings, and all papers relating to the file
 of: A published application; a patent; or a statutory invention registration are
 open to inspection by the public, and copies may be obtained upon the payment of
 the fee set forth in § 1.19(b)(2) . If an application
 was published in redacted form pursuant to § 1.217 , the complete file
 wrapper and contents of the patent application will not be available if: The
 requirements of paragraphs (d)(1), (d)(2), and (d)(3) of § 1.217 have
 been met in the application; and the application is still pending. See § 2.27 of
 this title for trademark files.
 

 (b) All reissue applications, all applications in which the Office has
 accepted a request to open the complete application to inspection by the public,
 and related papers in the application file, are open to inspection by the public,
 and copies may be furnished upon paying the fee therefor. The filing of reissue
 applications, other than continued prosecution applications under
 § 1.53(d) of reissue applications, will be announced in the
 Official Gazette. The announcement shall include at least
 the filing date, reissue application and original patent numbers, title, class and
 subclass, name of the inventor, name of the owner of record, name of the attorney
 or agent of record, and examining group to which the reissue application is
 assigned.
 

 (c) All requests for reexamination for which all the requirements of §
 1.510 or § 1.915 have been satisfied will
 be announced in the Official Gazette. Any reexaminations at the
 initiative of the Director pursuant to § 1.520 will also be announced
 in the Official Gazette. The announcement shall include at
 least the date of the request, if any, the reexamination request control number or
 the Director initiated order control number, patent number, title, class and
 subclass, name of the inventor, name of the patent owner of record, and the
 examining group to which the reexamination is assigned.
 

 (d) All papers or copies thereof relating to a reexamination proceeding
 which have been entered of record in the patent or reexamination file are open to
 inspection by the general public, and copies may be furnished upon paying the fee
 therefor.
 

 (e) Except as prohibited in § 41.6(b) , § 42.14 or § 42.410(b) , the file of any
 interference or trial before the Patent Trial and Appeal Board is open to public
 inspection and copies of the file may be obtained upon payment of the fee
 therefor.
 

 
 

 

 
 37 CFR 1.14 Patent applications preserved in confidence. 

 
 (a) Confidentiality of patent application information. Patent
 applications that have not been published under 35 U.S.C.
 122(b) are generally preserved in confidence pursuant to
 35 U.S.C.
 122(a) . Information concerning the filing, pendency, or
 subject matter of an application for patent, including status information, and
 access to the application, will only be given to the public as set forth in §
 1.11 or in this section.
 
 (1) Records associated with patent applications (see paragraph
 (g) of this section for international applications and paragraph (j) of this
 section for international design applications) may be available in the
 following situations:
 
 (i) Patented applications and statutory invention registrations.
 The file of an application that has issued as a patent or
 published as a statutory invention registration is available to the
 public as set forth in § 1.11(a) . A copy of
 the patent application-as-filed, the file contents of the application,
 or a specific document in the file of such an application may be
 provided upon request and payment of the appropriate fee set forth in
 § 1.19(b) . 
 

 (ii) Published abandoned applications. The file of an
 abandoned published application is available to the public as set
 forth in § 1.11(a) . A copy of
 the application-as-filed, the file contents of the published
 application, or a specific document in the file of the published
 application may be provided to any person upon request and payment of
 the appropriate fee set forth in § 1.19(b) .
 

 (iii) Published pending applications. A copy of the
 application-as-filed, the file contents of the application, or a
 specific document in the file of a pending published application may
 be provided to any person upon request and payment of the appropriate
 fee set forth in § 1.19(b) . If a
 redacted copy of the application was used for the patent application
 publication, the copy of the specification, drawings, and papers may
 be limited to a redacted copy. The Office will not provide access to
 the paper file of a pending application that has been published,
 except as provided in paragraph (c) or (i) of this section.
 

 (iv) Unpublished abandoned applications (including provisional
 applications) that are identified or relied upon. The
 file contents of an unpublished, abandoned application may be made
 available to the public if the application is identified in a U.S.
 patent, a statutory invention registration, a U.S. patent application
 publication, an international publication of an international
 application under PCT Article
 21(2) , or a publication of an international
 registration under Hague Agreement Article 10(3) of an international
 design application designating the United States. An application is
 considered to have been identified in a document, such as a patent,
 when the application number or serial number and filing date, first
 named inventor, title, and filing date or other application specific
 information are provided in the text of the patent, but not when the
 same identification is made in a paper in the file contents of the
 patent and is not included in the printed patent. Also, the file
 contents may be made available to the public, upon a written request,
 if benefit of the abandoned application is claimed
 under 35 U.S.C. 119(e) ,
 120 ,
 121 , 365 , or
 386(c) in an
 application that has issued as a U.S. patent, or has published as a
 statutory invention registration, a U.S. patent application
 publication, an international publication of an international
 application under PCT Article 21(2) ,
 or a publication of an international registration under Hague
 Agreement Article 10(3). A copy of the application-as-filed, the file
 contents of the application, or a specific document in the file of the
 application may be provided to any person upon written request and
 payment of the appropriate fee (§ 1.19(b) ).
 

 (v) Unpublished pending applications (including provisional
 applications) whose benefit is claimed. A copy of the
 file contents of an unpublished pending application may be provided to
 any person, upon written request and payment of the appropriate fee (§
 1.19(b) ), if the benefit of the application is
 claimed under 35 U.S.C. 119(e) ,
 120 ,
 121 , 365(c) , or
 386(c) in an
 application that has issued as a U.S. patent, or in an application
 that has published as a statutory invention registration, a U.S.
 patent application publication, an international publication of an
 international application under PCT Article 21(2) ,
 or a publication of an international registration under Hague
 Agreement Article 10(3). A copy of the application-as-filed or a
 specific document in the file of the pending application may also be
 provided to any person upon written request and payment of the
 appropriate fee (§ 1.19(b) ). The
 Office will not provide access to the paper file of a pending
 application, except as provided in paragraph (c) or (i) of this
 section.
 

 (vi) Unpublished pending applications (including provisional
 applications) that are incorporated by reference or otherwise
 identified. A copy of the application as originally filed
 of an unpublished pending application may be provided to any person,
 upon written request and payment of the appropriate fee (§
 1.19(b) ), if the application is incorporated by
 reference or otherwise identified in a U.S. patent, a statutory
 invention registration, a U.S. patent application publication, an
 international publication of an international application
 under PCT Article
 21(2) , or a publication of an international
 registration under Hague Agreement Article 10(3) of an international
 design application designating the United States. The Office will not
 provide access to the paper file of a pending application, except as
 provided in paragraph (c) or (i) of this section.
 

 (vii) When a petition for access or a power to inspect is
 required. Applications that were not published or
 patented, that are not the subject of a benefit claim
 under 35 U.S.C. 119(e) ,
 120 ,
 121 , 365 ,
 or 386(c) in an
 application that has issued as a U.S. patent, an application that has
 published as a statutory invention registration, a U.S. patent
 application publication, an international publication of an
 international application under PCT Article 21(2) 
 , or a publication of an international registration under Hague
 Agreement Article 10(3), or are not identified in a U.S. patent, a
 statutory invention registration, a U.S. patent application
 publication, an international publication of an international
 application under PCT Article
 21(2) , or a publication of an international
 registration under Hague Agreement Article 10(3) of an international
 design application designating the United States, are not available to
 the public. If an application is identified in the file contents of
 another application, but not the published patent application or
 patent itself, a granted petition for access (see paragraph (i)) or a
 power to inspect (see paragraph (c) of this section) is necessary to
 obtain the application, or a copy of the application. 
 

 
 

 (2) Information concerning a patent application may be
 communicated to the public if the patent application is identified in a
 published patent document or in an application as set forth in paragraphs
 (a)(1)(i) through (a)(1)(vi) of this section. The information that may be
 communicated to the public ( i.e., status information)
 includes:
 
 (i) Whether the application is pending, abandoned, or
 patented;
 

 (ii) Whether the application has been published under
 35 U.S.C. 122(b) ;
 

 (iii) The application “numerical identifier” which may be: 
 
 (A) The eight-digit application number (the two-digit
 series code plus the six-digit serial number); or 
 

 (B) The six-digit serial number plus any one of the
 filing date of the national application, the international
 filing date, or date of entry into the national stage; and 
 

 
 

 (iv) Whether another application claims the benefit of the
 application ( i.e., whether there are any
 applications that claim the benefit of the filing date under
 35 U.S.C. 119(e) , 120 , 121 ,
 365 , or 386 of the application), and if there are any
 such applications, the numerical identifier of the application, the
 specified relationship between the applications
 ( e.g., continuation), whether the application is
 pending, abandoned or patented, and whether the application has been
 published under 35 U.S.C. 122(b) .
 
 

 
 

 
 

 
 *****

 

 

 I. ACCESS TO IMAGE FILE WRAPPER (IFW) APPLICATIONS The Image File Wrapper (IFW) system uses image technology to replace the
 paper processing of patent applications in the Office. Paper components of these
 application files (including the specification, oath or declaration, drawings,
 information disclosure statements, amendments, Office actions, and file jacket
 notations) have been scanned to create electronic image files. For patent applications
 in the IFW system, the IFW file is the Official file and no access is granted to the
 original paper document sheets used to create the IFW file. All processing and
 examination is conducted using the electronic images instead of the paper source
 documents.
 

 If an IFW file has been created for a patented
 application, published application, or an application to which a patented or published
 application claims domestic benefit, the IFW file (with the exception of non-patent
 literature) is accessible through Patent Center. All patent applications filed after
 June 30, 2003, have been scanned into the IFW system are available in Patent Center upon
 publishing or patenting. Pending applications filed before June 30, 2003, were scanned
 into IFW as incoming papers were received in the Office. 
 

 II. PUBLISHED APPLICATIONS 
 37 CFR 1.14 Patent applications preserved in confidence. 

 
 (a) Confidentiality of patent application information. Patent
 applications that have not been published under 35 U.S.C.
 122(b) are generally preserved in confidence pursuant to
 35 U.S.C.
 122(a) . Information concerning the filing, pendency, or
 subject matter of an application for patent, including status information, and
 access to the application, will only be given to the public as set forth in §
 1.11 or in this section.
 
 (1) Records associated with patent applications (see paragraph
 (g) of this section for international applications and paragraph (j) of
 this section for international design applications) may be available in
 the following situations:
 
 
 *****

 

 (ii) Published abandoned applications. The file of an
 abandoned published application is available to the public as set
 forth in § 1.11(a) . A copy
 of the application-as-filed, the file contents of the published
 application, or a specific document in the file of the published
 application may be provided to any person upon request and payment
 of the appropriate fee set forth in § 1.19(b) .
 

 (iii) Published pending applications. A copy of the
 application-as-filed, the file contents of the application, or a
 specific document in the file of a pending published application
 may be provided to any person upon request and payment of the
 appropriate fee set forth in § 1.19(b) . If a
 redacted copy of the application was used for the patent
 application publication, the copy of the specification, drawings,
 and papers may be limited to a redacted copy. The Office will not
 provide access to the paper file of a pending application that has
 been published, except as provided in paragraph (c) or (i) of this
 section. 
 

 
 

 
 

 
 *****

 

 

 If a patent application has been published pursuant to 35 U.S.C. 122(b) ,
 then a copy of the specification, drawings, and all papers relating to the file of that
 published application (whether abandoned or pending) may be provided to any person upon
 written request and payment of the fee set forth in 37 CFR 1.19(b) . See
 37 CFR
 1.14(a)(1)(ii) and (iii) . Pursuant to 35 U.S.C. 374 
 and 35
 U.S.C. 390 , the publication by the International Bureau of an
 international application under the PCT or an international design application
 designating the United States under the Hague Agreement is deemed to be a publication
 under 35 U.S.C.
 122(b) . Note that the U.S. is automatically designated in all
 international applications under the PCT filed on or after January 1, 2004. 
 

 If a redacted copy of the application was used for the
 patent application publication, the copy of the application will be limited to the
 redacted copy of the application and the redacted materials provided under
 37 CFR
 1.217(d) .
 

 See paragraph I., above, for information pertaining to access to Image
 File Wrapper (IFW) applications. Published applications maintained in the IFW system are
 available on the USPTO website in Patent Center. If the published patent application is
 pending and it is not maintained in the IFW system, the paper application file itself
 will not be available to the public for inspection. Only copies of the application file
 may be obtained pursuant to 37 CFR 1.14(a)(1)(iii) . If the
 published patent application is abandoned, the entire application is available to the
 public for inspection and obtaining copies. See 37 CFR 1.11(a) . 
 

 III. UNPUBLISHED ABANDONED AND PENDING APPLICATIONS (INCLUDING PROVISIONAL
 APPLICATIONS) THAT ARE IDENTIFIED 
 37 CFR 1.14 Patent applications preserved in confidence. 

 
 (a) Confidentiality of patent application information. Patent
 applications that have not been published under 35 U.S.C.
 122(b) are generally preserved in confidence pursuant to
 35 U.S.C.
 122(a) . Information concerning the filing, pendency, or
 subject matter of an application for patent, including status information, and
 access to the application, will only be given to the public as set forth in §
 1.11 or in this section.
 
 (1) Records associated with patent applications (see paragraph
 (g) of this section for international applications and paragraph (j) of
 this section for international design applications) may be available in
 the following situations:
 
 
 *****

 

 (iv) Unpublished abandoned applications (including provisional
 applications) that are identified or relied upon. The
 file contents of an unpublished, abandoned application may be made
 available to the public if the application is identified in a U.S.
 patent, a statutory invention registration, a U.S. patent
 application publication, an international publication of an
 international application under PCT Article
 21(2) , or a publication of an international
 registration under Hague Agreement Article 10(3) of an
 international design application designating the United States. An
 application is considered to have been identified in a document,
 such as a patent, when the application number or serial number and
 filing date, first named inventor, title, and filing date or other
 application specific information are provided in the text of the
 patent, but not when the same identification is made in a paper in
 the file contents of the patent and is not included in the printed
 patent. Also, the file contents may be made available to the
 public, upon a written request, if benefit of the abandoned
 application is claimed under 35 U.S.C.
 119(e) , 120 , 121 ,
 365 , or
 386(c) in an
 application that has issued as a U.S. patent, or has published as a
 statutory invention registration, a U.S. patent application
 publication, an international publication of an international
 application under PCT Article
 21(2) , or a publication of an international
 registration under Hague Agreement Article 10(3). A copy of the
 application-as-filed, the file contents of the application, or a
 specific document in the file of the application may be provided to
 any person upon written request and payment of the appropriate fee
 (§ 1.19(b) ).
 

 (v) Unpublished pending applications (including provisional
 applications) whose benefit is claimed. A copy of the
 file contents of an unpublished pending application may be provided
 to any person, upon written request and payment of the appropriate
 fee (§ 1.19(b) ), if
 the benefit of the application is claimed under 35 U.S.C.
 119(e) , 120 , 121 ,
 365(c) , or
 386(c) in an
 application that has issued as a U.S. patent, or in an application
 that has published as a statutory invention registration, a U.S.
 patent application publication, an international publication of an
 international application under PCT Article
 21(2) , or a publication of an international
 registration under Hague Agreement Article 10(3). A copy of the
 application-as-filed or a specific document in the file of the
 pending application may also be provided to any person upon written
 request and payment of the appropriate fee (§ 1.19(b) ). The Office will not provide access
 to the paper file of a pending application, except as provided in
 paragraph (c) or (i) of this section.
 

 (vi) Unpublished pending applications (including provisional
 applications) that are incorporated by reference or otherwise
 identified. A copy of the application as originally
 filed of an unpublished pending application may be provided to any
 person, upon written request and payment of the appropriate fee (§
 1.19(b) ), if
 the application is incorporated by reference or otherwise
 identified in a U.S. patent, a statutory invention registration, a
 U.S. patent application publication, an international publication
 of an international application under PCT Article
 21(2) , or a publication of an international
 registration under Hague Agreement Article 10(3) of an
 international design application designating the United States. The
 Office will not provide access to the paper file of a pending
 application, except as provided in paragraph (c) or (i) of this
 section.
 

 
 

 
 

 
 *****

 

 

 Abandoned applications meeting the requirements of 37 CFR
 1.14(a)(1)(iv) and any application that is open to the public
 under 37 CFR
 1.11 may be obtained by any person through the Patent and
 Trademark Copy Fulfillment Branch’s Certified Copy Center (CCC). The following abandoned
 applications are available: (A) An abandoned application referred to in a U.S. patent
 application publication or U.S. patent; and (B) a pending File Wrapper Continuation
 application (FWC) filed under former 37 CFR 1.62 of an abandoned
 application that meets the requirements of 37 CFR 1.14(a)(1)(iv) . Under former
 37 CFR
 1.62(f) , where access is permitted to an application within the
 file wrapper of a FWC application, the applicant has waived the right to keep all
 earlier filed applications in the same file wrapper in confidence.
 

 37 CFR
 1.14(a)(1)(i) relates only to United States applications that are
 open to public inspection. See 37 CFR 1.14(g)(3)-(5) for access to
 international applications where the U.S. is designated. See also MPEP § 110 . See
 37 CFR
 1.14(j) for access to international design applications. If an
 abandoned application is referred to in an international publication of an international
 application under PCT
 Article 21(2) , or in a publication of an international
 registration under Hague Agreement Article 10(3), access to the abandoned application is
 available under 37 CFR
 1.14(a)(1)(iv) . 
 

 An abandoned non-IFW application identified in a U.S. patent application
 publication, U.S. patent or a U.S. application that is open to public inspection may be
 ordered for inspection by any member of the public through the Patent and Trademark Copy
 Fulfillment Branch’s Certified Copy Center (CCC). 
 

 The incorporation by reference of a pending application in a U.S. patent
 application publication, a U.S. patent, a published international application published
 in accordance with PCT
 Article 21(2) , a publication of an international registration
 under Hague Agreement Article 10(3), or a statutory invention registration constitutes a
 special circumstance under 35 U.S.C. 122 warranting that a copy
 of the application-as-filed be provided upon written request as provided in
 37 CFR
 1.14(a)(1)(vi) . In addition, if a U.S. patent application
 publication, a U.S. patent, a published international application, or a published
 international registration claims benefit under 35 U.S.C. 119(e) , 120 ,
 121 , 365 , or 386 to a
 U.S. patent application, a copy of that application-as-filed may be provided upon
 written request (see 37 CFR 1.14(a)(1)(v) ), or be available through Patent Center if
 the application is maintained in the IFW system. A benefit claim in an international
 design application that does not designate the United States is not a claim under
 35 U.S.C.
 119(e) , 120 , 121 ,
 365 or 386 . The written request, including
 a copy of the page of the patent application publication, U.S. patent, published
 international application, or published international registration including the
 incorporation by reference or specific reference under 35 U.S.C. 119(e) ,
 120 , 121 , 365 , or
 386 and the requisite fee set forth in 37 CFR 1.19(b)(1) ,
 should be directed to the Patent and Trademark Copy Fulfillment Branch of the Public
 Records Division. However, an incorporation by reference that is made as part of a
 transmittal letter for the application, or that is a part of the text of the application
 that has been canceled and which does not appear as part of the printed patent, may not
 be relied upon to obtain a copy of the application as originally filed. A petition for
 access with an explanation of special circumstances other than the not-printed
 incorporation by reference will be required. See 37 CFR 1.14(a)(1)(vii) .
 

 Copies of a patent application-as-filed and the contents of a patent
 application file wrapper may be ordered on-line or requested by facsimile from the
 Patent and Trademark Copy Fulfillment Branch. Payment of the appropriate fee
 under 37 CFR
 1.19(b) may be made by USPTO Deposit Account, American Express®,
 Discover®, MasterCard®, or Visa® by any person having a right to access to the
 originally filed application or patent. The Office does not provide for access to
 non-United States applications.
 

 Form PTO/SB/68 may be used to request access, which is available at
 www.uspto.gov .
 

 IV. ACCESS WHERE PART OF AN APPLICATION IS INCORPORATED BY REFERENCE IN A U.S. PATENT
 APPLICATION PUBLICATION OR A U.S. PATENT 37 CFR
 1.14(a)(1)(vi) permits a member of the public, without a petition
 for access, to obtain a copy of a pending application as originally filed, when the
 application is incorporated by reference in a U.S. patent application publication or a
 U.S. patent, upon the filing of an appropriate request and the payment of the required
 fee. However, if only part of the application is incorporated by reference, for example,
 where an application states, “the disclosure of a valve on page 5, lines 5-35, of
 application No. XX/YYY,YYY, is hereby incorporated by reference,” then a petition for
 access is required to obtain access to or a copy of the incorporated material.
 Incorporation by reference of part of an application in a U.S. patent application
 publication or a U.S. patent constitutes a special circumstances under 35 U.S.C. 122(a) 
 warranting that access to that part of the original disclosure of the application be
 granted on petition. The incorporation by reference will be interpreted as a waiver of
 confidentiality of only that part of the original disclosure as filed, and not the
 entire application file. In re Gallo, 231 USPQ 496 (Comm’r Pat.
 1986). If applicant objects to access to the entire application file, applicant must
 file two copies of the information incorporated by reference along with the objection.
 In the example given, applicant would be required to provide two copies of page 5, lines
 5-35 of the XX/YYY,YYY application. Failure to provide the material within the time
 period provided will result in the entire application content (including prosecution
 history) being made available to the petitioner. The Office will not attempt to separate
 the noted materials from the remainder of the application. Compare In re Marsh
 Eng’g. Co., 1913 C.D. 183 (Comm’r Pat. 1913).
 

 V. PETITION FOR ACCESS BY THIRD PARTY 
 37 CFR 1.14 Patent applications preserved in confidence. 

 
 (a) Confidentiality of patent application information. Patent
 applications that have not been published under 35 U.S.C.
 122(b) are generally preserved in confidence pursuant to
 35 U.S.C.
 122(a) . Information concerning the filing, pendency, or
 subject matter of an application for patent, including status information, and
 access to the application, will only be given to the public as set forth in §
 1.11 or in this section.
 
 (1) Records associated with patent applications (see paragraph
 (g) of this section for international applications and paragraph (j) of
 this section for international design applications) may be available in
 the following situations:
 
 
 *****

 

 (vii) When a petition for access or a power to inspect is
 required. Applications that were not published or
 patented, that are not the subject of a benefit claim
 under 35 U.S.C.
 119(e) , 120 , 121 ,
 365(c) , or
 386(c) in an
 application that has issued as a U.S. patent, an application that
 has published as a statutory invention registration, a U.S. patent
 application publication, an international publication of an
 international application under PCT Article
 21(2) , or a publication of an international
 registration under Hague Agreement Article 10(3), or are not
 identified in a U.S. patent, a statutory invention registration, a
 U.S. patent application publication, an international publication
 of an international application under PCT Article
 21(2) , or a publication of an international
 registration under Hague Agreement Article 10(3) of an
 international design application designating the United States, are
 not available to the public. If an application is identified in the
 file contents of another application, but not the published patent
 application or patent itself, a granted petition for access (see
 paragraph (i)) or a power to inspect (see paragraph (c) of this
 section) is necessary to obtain the application, or a copy of the
 application.
 

 
 

 
 

 
 *****

 
 (i) Access or copies in other circumstances. The Office, either
 sua sponte or on petition, may also provide access or
 copies of all or part of an application if necessary to carry out an Act of
 Congress or if warranted by other special circumstances. Any petition by a
 member of the public seeking access to, or copies of, all or part of any
 pending or abandoned application preserved in confidence pursuant to paragraph
 (a) of this section, or any related papers, must include:
 
 (1) The fee set forth in § 1.17(g) ; and
 

 (2) A showing that access to the application is necessary to
 carry out an Act of Congress or that special circumstances exist which
 warrant petitioner being granted access to all or part of the
 application.
 

 
 

 
 *****

 

 

 Any interested party may file a petition, accompanied by the petition
 fee, to the Director for access to an application. Inasmuch as the post office address
 is necessary for the complete identification of the petitioner, it should always be
 included complete with ZIP Code number. In addition, telephone and facsimile numbers
 should be provided to expedite handling of the petition. Petitions for access are
 handled in the Office of Patent Legal Administration, unless the application is involved
 in an interference, derivation proceeding, or trial before the Patent Trial and Appeal
 Board. See MPEP §
 1002.02(b) , item 21.
 

 The petition may be filed either with proof of service of copy upon the
 inventor, applicant in an application filed on or after September 16, 2012, assignee of
 record, or attorney or agent of record in the application to which access is sought, or
 the petition may be filed in duplicate, in which case the duplicate copy will be sent by
 the Office to the inventor, applicant in an application filed on or after September 16,
 2012, assignee of record, or attorney or agent of record in the application (hereinafter
 “applicant”). A separate petition, with fee, must be filed for each application file to
 which access is desired. Each petition should show not only why access is desired, but
 also why petitioner believes they are entitled to access. The applicant will normally be
 given a limited period such as 3 weeks within which to state any objection to the
 granting of the petition for access and reasons why it should be denied. If applicant
 states that they have no objection to the requested access, the petition will be
 granted. If objection is raised or applicant does not respond, the petition will be
 decided on the record. If access is granted to the application, any objections filed by
 the applicant will be available to the petitioner since these papers are in the
 application file. If access to the application is denied, petitioner will not receive
 copies of any objections filed by the applicant. A determination will be made whether
 “special circumstances” are present which warrant a grant of access under
 35 U.S.C.
 122 . See below when the application is the basis of a claim for
 benefit of an earlier filing date under 35 U.S.C. 120 or part of the
 application is incorporated by reference in a United States patent. “Special
 circumstances” could be found where an applicant has relied upon the applicant's
 application as a means to interfere with a competitor’s business or customers. See,
 e.g., In re Crossman, 187 USPQ 367 (PTO Solicitor 1975); and
 In re Trimless Cabinets, 128 USPQ 95 (Comm’r Pat. 1960).
 Furthermore, “special circumstances” could be found where an attorney or agent of record
 in an application in which a provisional double patenting rejection is made does not
 have power of attorney in the copending application having a common assignee or
 inventor. However, a more expeditious means of obtaining access would be to obtain power
 to inspect from an assignee or inventor. See MPEP §§ 104 and 106.01 .
 

 VI. ACCESS WHERE PATENT CLAIMS 35 U.S.C. 119(e) ,
 120 , 121 , 365(c) , or
 386(c) BENEFIT 
 37 CFR 1.14 Patent applications preserved in confidence. 

 
 (a) Confidentiality of patent application information. Patent
 applications that have not been published under 35 U.S.C.
 122(b) are generally preserved in confidence pursuant to
 35 U.S.C.
 122(a) . Information concerning the filing, pendency, or
 subject matter of an application for patent, including status information, and
 access to the application, will only be given to the public as set forth in §
 1.11 or in this section.
 
 (1) Records associated with patent applications (see paragraph
 (g) of this section for international applications and paragraph (j) of
 this section for international design applications) may be available in
 the following situations:
 
 
 *****

 

 (iv) Unpublished abandoned applications (including provisional
 applications) that are identified or relied upon. The
 file contents of an unpublished, abandoned application may be made
 available to the public if the application is identified in a U.S.
 patent, a statutory invention registration, a U.S. patent
 application publication, an international publication of an
 international application under PCT Article
 21(2) , or a publication of an international
 registration under Hague Agreement Article 10(3) of an
 international design application designating the United States. An
 application is considered to have been identified in a document,
 such as a patent, when the application number or serial number and
 filing date, first named inventor, title, and filing date or other
 application specific information are provided in the text of the
 patent, but not when the same identification is made in a paper in
 the file contents of the patent and is not included in the printed
 patent. Also, the file contents may be made available to the
 public, upon a written request, if benefit of the abandoned
 application is claimed under 35 U.S.C.
 119(e) , 120 , 121 ,
 365(c) , or
 386(c) in an
 application that has issued as a U.S. patent, or has published as a
 statutory invention registration, a U.S. patent application
 publication, an international publication of an international
 application under PCT Article
 21(2) , or a publication of an international
 registration under Hague Agreement Article 10(3). A copy of the
 application-as-filed, the file contents of the application, or a
 specific document in the file of the application may be provided to
 any person upon written request and payment of the appropriate fee
 (§ 1.19(b) ).
 

 (v) Unpublished pending applications (including provisional
 applications) whose benefit is claimed. A copy of the
 file contents of an unpublished pending application may be provided
 to any person, upon written request and payment of the appropriate
 fee (§ 1.19(b) ), if
 the benefit of the application is claimed under 35 U.S.C.
 119(e) , 120 , 121 ,
 365(c) , or
 386(c) in an
 application that has issued as a U.S. patent, or in an application
 that has published as a statutory invention registration, a U.S.
 patent application publication, an international publication of an
 international application under PCT Article
 21(2) , or a publication of an international
 registration under Hague Agreement Article 10(3). A copy of the
 application-as-filed or a specific document in the file of the
 pending application may also be provided to any person upon written
 request and payment of the appropriate fee (§ 1.19(b) ). The Office will not provide access
 to the paper file of a pending application, except as provided in
 paragraph (c) or (i) of this section. 
 

 (vi) Unpublished pending applications (including provisional
 applications) that are incorporated by reference or otherwise
 identified. A copy of the application as originally
 filed of an unpublished pending application may be provided to any
 person, upon written request and payment of the appropriate fee (§
 1.19(b) ), if
 the application is incorporated by reference or otherwise
 identified in a U.S. patent, a statutory invention registration, a
 U.S. patent application publication, an international publication
 of an international application under PCT Article
 21(2) , or a publication of an international
 registration under Hague Agreement Article 10(3) of an
 international design application designating the United States. The
 Office will not provide access to the paper file of a pending
 application, except as provided in paragraph (c) or (i) of this
 section. 
 

 
 

 
 

 
 *****

 

 

 Whenever a patent relies on the filing date of an earlier but still
 pending application, the Office permits an applicant to obtain a copy of the prior
 application, either as originally filed or of the pending file history, upon written
 request (to the Patent and Trademark Copy Fulfillment Branch of the Public Records
 Division) and payment of the appropriate fee. Furthermore, after publication of a U.S.
 patent, a U.S. patent application publication, a statutory invention registration, an
 international application under PCT Article 21(2) , or an
 international registration under Hague Agreement Article 10(3), the file contents of any
 abandoned application identified or relied upon in such a publication are available
 pursuant to 37 CFR
 1.14(a)(1)(iv) . If the application is pending and benefit of the
 application is claimed pursuant to 35 U.S.C.119(e) , 120 ,
 121 , 365(c) , or 386(c) 
 in such a patent document, then the file contents of the application are available
 pursuant to 37 CFR
 1.14(a)(1)(v) . Such a patent application is available through
 Patent Center if the application is maintained in the IFW system.
 

 VII. ACCESS TO PROVISIONAL APPLICATIONS Provisional applications are not published under 35 U.S.C. 122(b) 
 and are generally preserved in confidence pursuant to 35 U.S.C. 122(a) ,
 as with any other unpublished application. Therefore, access to or copies of all or part
 of a provisional application are customarily only made available to the public under the
 limited circumstances provided in 37 CFR
 1.14(a)(1)(iv) - (vi) and 1.14(i) . See
 subsections III-VI above. For example, a provisional application that is relied upon for
 priority in a U.S. patent and is abandoned is available under 37 CFR
 1.14(a)(1)(iv) and, as a result, may be available through Patent
 Center. For information on obtaining access to or copies of a provisional application
 using a power to inspect signed by an authorized person associated with the provisional
 application, see 37 CFR 1.14(c) and MPEP § 104 .
 

 VIII. APPLICATION AT THE PATENT TRIAL AND APPEAL BOARD The Patent Trial and Appeal Board handles all requests for access to, or
 copies of Office records directly related to, applications involved in interferences,
 derivation proceedings, or trials. See 37 CFR 41.109 and 37 CFR
 42.3 . See also MPEP Chapter 2300 . 
 

 IX. DEFENSIVE PUBLICATIONS The entire application file of a defensive publication is available to
 the public for inspection and obtaining copies. See MPEP § 711.06 .
 

 X. REISSUE APPLICATIONS 37 CFR
 1.11(b) opens reissue applications to inspection by the general
 public. 37 CFR
 1.11(b) also provides for announcement of the filings of reissue
 applications in the Official Gazette (except for continued
 prosecution applications filed under 37 CFR 1.53(d) ). This announcement
 gives interested members of the public an opportunity to submit to the examiner
 information pertinent to patentability of the reissue application.
 

 IFW reissue application files are open to inspection by the general
 public by way of Patent Center via the USPTO Internet site. In viewing the images of the
 files, members of the public will be able to view the entire content of the reissue
 application file history. Access to Patent Center is available at www.uspto.gov/PatentCenter .
 

 XI. REQUEST FOR REEXAMINATION An announcement of the filing of each request for reexamination in which
 the entire fee has been paid, and of each reexamination ordered at the initiative of the
 Director under 37 CFR
 1.520 , will be published in the Official
 Gazette. A reexamination file is normally NOT open to inspection by the
 general public until the file has been scanned into the IFW system, at which point the
 file is open to inspection by the public by way of Patent Center via the USPTO Internet
 site. In viewing the images of the reexamination proceedings, members of the public will
 be able to view the entire contents of the reexamination file with the exception of
 non-patent literature. See also MPEP § 2232 .
 

 XII. DECISIONS BY THE DIRECTOR 
 37 CFR 1.14 Patent applications preserved in confidence. 

 *****

 
 (e) Decisions by the Director. Any decision by the Director that
 would not otherwise be open to public inspection may be published or made
 available for public inspection if:
 
 (1) The Director believes the decision involves an
 interpretation of patent laws or regulations that would be of
 precedential value; and
 

 (2) The applicant is given notice and an opportunity to object
 in writing within two months on the ground that the decision discloses a
 trade secret or other confidential information. Any objection must
 identify the deletions in the text of the decision considered necessary
 to protect the information, or explain why the entire decision must be
 withheld from the public to protect such information. An applicant or
 party will be given time, not less than twenty days, to request
 reconsideration and seek court review before any portions of a decision
 are made public under this paragraph over his or her objection
 

 
 

 
 *****

 

 

 
 37 CFR 41.6 Public availability of Board records. 

 
 (a) Publication. 
 (1) Generally. Any Board action is available for public
 inspection without a party’s permission if rendered in a file open to the
 public pursuant to § 1.11 of this title
 or in an application that has been published in accordance with §§
 1.211 to 1.221 of this title.
 The Office may independently publish any Board action that is available
 for public inspection.
 

 (2) Determination of special circumstances. Any Board
 action not publishable under paragraph (a)(1) of this section may be
 published or made available for public inspection if the Director
 believes that special circumstances warrant publication and a party does
 not, within two months after being notified of the intention to make the
 action public, object in writing on the ground that the action discloses
 the objecting party’s trade secret or other confidential information and
 states with specificity that such information is not otherwise publicly
 available. If the action discloses such information, the party shall
 identify the deletions in the text of the action considered necessary to
 protect the information. If the affected party considers that the entire
 action must be withheld from the public to protect such information, the
 party must explain why. The party will be given time, not less than
 twenty days, to request reconsideration and seek court review before any
 contested portion of the action is made public over its objection.
 

 
 

 (b) Record of proceeding. 
 (1) The record of a Board proceeding is
 available to the public unless a patent application not otherwise
 available to the public is involved.
 

 (2) Notwithstanding paragraph (b)(1) of this section, after a
 final Board action in or judgment in a Board proceeding, the record of
 the Board proceeding will be made available to the public if any involved
 file is or becomes open to the public under § 1.11 of this title or an involved application is
 or becomes published under §§ 1.211 to
 1.221 of this title.
 

 
 

 
 

 

 37 CFR
 1.14(e) states the conditions under which significant decisions by
 the Director that would not otherwise be open to public inspection will be made
 available to the public. 37 CFR 41.6 describes the procedure
 for making a decision of the Patent Trial and Appeal Board available to the public.
 These sections are applicable to decisions deemed by the Director to involve an
 interpretation of patent laws or regulation that would be of significant precedential
 value, where such decisions are contained in either pending or abandoned applications or
 in Board records not otherwise open to the public. It is applicable whether or not the
 decision is a final decision of the U.S. Patent and Trademark Office.
 

 37 CFR
 1.14(e) and 37 CFR 41.6 are considered to place
 a duty on the U.S. Patent and Trademark Office to identify significant decisions and to
 take the steps necessary to inform the public of such decisions, by publication of such
 decisions, in whole or in part. It is anticipated, however, that no more than a few
 dozen decisions per year will be deemed of sufficient importance to warrant publication
 under the authority of this section.
 

 XIII. FOIA REQUESTS 
 37 CFR 102.4 Requirements for making requests. 

 
 (a) A request for USPTO records that are not customarily made
 available to the public as part of USPTO’s regular informational services must
 be in writing, and shall be processed under FOIA, regardless of whether FOIA is
 mentioned in the request. Requests should be sent to the USPTO FOIA Officer,
 United States Patent and Trademark Office, P.O. Box 1450, Alexandria, Virginia
 22313-1450 (records FOIA requires to be made regularly available for public
 inspection and copying are addressed in § 102.2(c) ). For the quickest
 handling, the request letter and envelope should be marked “Freedom of
 Information Act Request.” For requests for records about oneself, §
 102.24 contains additional requirements. For requests
 for records about another individual, either a written authorization signed by
 that individual permitting disclosure of those records to the requester or
 proof that individual is deceased (for example, a copy of a death certificate
 or an obituary) facilitates processing the request.
 

 (b) The records requested must be described in enough detail to
 enable USPTO personnel to locate them with a reasonable amount of effort.
 Whenever possible, a request should include specific information about each
 record sought, such as the date, title or name, author, recipient, and subject
 matter of the record, and the name and location of the office where the record
 is located. Also, if records about a court case are sought, the title of the
 case, the court in which the case was filed, and the nature of the case should
 be included. If known, any file designations or descriptions for the requested
 records should be included. In general, the more specifically the request
 describes the records sought, the greater the likelihood that USPTO will locate
 those records. If the FOIA Officer determines that a request does not
 reasonably describe records, the FOIA Officer will inform the requester what
 additional information is needed or why the request is otherwise insufficient.
 The FOIA Officer also may give the requester an opportunity to discuss the
 request so that it may be modified to meet the requirements of this
 section.
 

 
 

 

 Many decisions of the Office are available on the FOIA section of the
 USPTO website at www.uspto.gov/learning-and-resources
 /ip-policy/electronic-freedom-information-act-e-foia . See
 37 CFR Part 102,
 Subpart A , “Freedom of Information Act,” for rules pertaining to
 FOIA requests.
 

 [top] 

 

 

 
 

 
 

 

 

 

 
 
 
 101-General 

 102-Information as to Status of an Application 

 103-Right of Public To Inspect Patent Files and Some Application Files 

 104-Power to Inspect Application 

 105-Suspended or Excluded Practitioner Cannot Inspect 

 106-Control of Inspection by Assignee 
 106.01-Rights of Assignee of Part Interest 

 
 

 107‑109-[Reserved] 

 110-Confidential Nature of International Applications 

 111‑114-[Reserved] 

 115-Review of Applications for National Security and Property Rights Issues 

 116‑119-[Reserved] 

 120-Secrecy Orders 

 121-Handling of Applications under Secrecy Order and/or Bearing National Security Markings 

 122‑129-[Reserved] 

 130-Examination of Secrecy Order Cases 

 131‑139-[Reserved] 

 140-Foreign Filing Licenses 

 141‑149-[Reserved] 

 150-Statements to DOE and NASA 

 151-Content of the Statements 

 

 

 
 

 
 
 

 
 

 

 
 
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