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201 Types of Applications [R-2] - 200 Types, Cross-Noting, and Status of Application
201 Types of Applications [R-2]
35 U.S.C. 111 Application.
(a) IN GENERAL.-
(1) WRITTEN APPLICATION.-An application for patent shall be made, or authorized to be made, by the inventor, except as otherwise provided in this title, in writing to the Director.
(2) CONTENTS.-Such application shall include-
(A) a specification as prescribed by section 112 of this title;
(B) a drawing as prescribed by section 113 of this title; and
(C) an oath by the applicant as prescribed by section 115 of this title.
(3) FEE AND OATH.-The application must be accompanied by the fee required by law. The fee and oath may be submitted after the specification and any required drawing are submitted, within such period and under such conditions, including the payment of a surcharge, as may be prescribed by the Director.
(4) FAILURE TO SUBMIT.-Upon failure to submit the fee and oath within such prescribed period, the application shall be regarded as abandoned, unless it is shown to the satisfaction of the Director that the delay in submitting the fee and oath was unavoidable or unintentional. The filing date of an application shall be the date on which the specification and any required drawing are received in the Patent and Trademark Office.
(b) PROVISIONAL APPLICATION.-
(1) AUTHORIZATION.-A provisional application for patent shall be made or authorized to be made by the inventor, except as otherwise provided in this title, in writing to the Director. Such application shall include-
(A) a specification as prescribed by the first paragraph of section 112 of this title; and
(B) a drawing as prescribed by section 113 of this title.
(2) CLAIM.-A claim, as required by the second through fifth paragraphs of section 112, shall not be required in a provisional application.
(3) FEE.-
(A) The application must be accompanied by the fee required by law.
(B) The fee may be submitted after the specification and any required drawing are submitted, within such period and under such conditions, including the payment of a surcharge, as may be prescribed by the Director.
(C) Upon failure to submit the fee within such prescribed period, the application shall be regarded as abandoned, unless it is shown to the satisfaction of the Director that the delay in submitting the fee was unavoidable or unintentional.
(4) FILING DATE.-The filing date of a provisional application shall be the date on which the specification and any required drawing are received in the Patent and Trademark Office.
(5) ABANDONMENT.-Notwithstanding the absence of a claim, upon timely request and as prescribed by the Director, a provisional application may be treated as an application filed under subsection (a). Subject to section 119(e)(3) of this title, if no such request is made, the provisional application shall be regarded as abandoned 12 months after the filing date of such application and shall not be subject to revival after such 12-month period.
(6) OTHER BASIS FOR PROVISIONAL APPLICATION.-Subject to all the conditions in this subsection and section 119(e) of this title, and as prescribed by the Director, an application for patent filed under subsection (a) may be treated as a provisional application for patent.
(7) NO RIGHT OF PRIORITY OR BENEFIT OF EARLIEST FILING DATE.-A provisional application shall not be entitled to the right of priority of any other application under section 119 or 365(a) of this title or to the benefit of an earlier filing date in the United States under section 120, 121, or 365(c) of this title.
(8) APPLICABLE PROVISIONS.-The provisions of this title relating to applications for patent shall apply to provisional applications for patent, except as otherwise provided, and except that provisional applications for patent shall not be subject to sections 115, 131, 135, and 157 of this title.
(Amended Aug. 27, 1982, Public Law 97-247, sec. 5, 96 Stat. 319; Dec. 8, 1994, Public Law 103-465, sec. 532(b)(3), 108 Stat. 4986; Nov. 29, 1999, Public Law 106-113, sec. 1000(a)(9), 113 Stat. 1501A-582, 588 (S. 1948 secs. 4732(a)(10)(A), 4801(a)).)
37 CFR 1.9 Definitions.
(a)
(1) A national application as used in this chapter means a U.S. application for patent which was either filed in the Office under 35 U.S.C. 111, or which entered the national stage from an international application after compliance with 35 U.S.C. 371.
(2) A provisional application as used in this chapter means a U.S. national application for patent filed in the Office under 35 U.S.C. 111(b).
(3) A nonprovisional application as used in this chapter means a U.S. national application for patent which was either filed in the Office under 35 U.S.C. 111(a), or which entered the national stage from an international application after compliance with 35 U.S.C. 371.
(b) An international application as used in this chapter means an international application for patent filed under the Patent Cooperation Treaty prior to entering national processing at the Designated Office stage.
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NATIONAL APPLICATIONS (35 U.S.C. 111) VS. NATIONAL STAGE APPLICATIONS (35 U.S.C. 371)
Nonprovisional and provisional applications are national applications. Treatment of a national application under 35 U.S.C. 111 and a national stage application (a national application which entered the national stage from an international application after compliance with 35 U.S.C. 371) are similar but not identical. Note the following examples:
(A) Restriction practice under MPEP § 806+ is applied to national applications under 35 U.S.C. 111(a) while unity of invention practice under MPEP Chapter 1800 is applied to national stage applications.
(B) National nonprovisional applications filed under 35 U.S.C. 111(a) without an executed oath or declaration or filing fee are governed by the notification practice set forth in 37 CFR 1.53(f) while national stage applications filed without an oath or declaration or national stage fee are governed by the notification practice set forth in 37 CFR 1.495.
37 CFR 1.9(a)(1) defines a national application as a U.S. application which was either filed in the Office under 35 U.S.C. 111, or which entered the national stage from an international application after compliance with 35 U.S.C. 371. Domestic national patent applications fall under three broad types:
(A) applications for patent under 35 U.S.C. 101 relating to a "new and useful process, machine, manufacture, or composition of matter, etc.";
(B) applications for plant patents under 35 U.S.C. 161; and
(C) applications for design patents under 35 U.S.C. 171.
The first type of patents are sometimes referred to as "utility" patents ** when being contrasted with plant or design patents. The specialized procedure which pertains to the examination of applications for design and plant patents are treated in detail in Chapters 1500 and 1600, respectively. Domestic national applications include original (nonprovisional), provisional, plant, design, reissue, divisional, and continuation applications (which may be filed under 37 CFR 1.53(b)), continued prosecution applications (CPA) (filed under 37 CFR 1.53(d)>, only applicable if the application is for a design patent<) and continuation-in-part applications (which may be filed under 37 CFR 1.53(b)).
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