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903.08(d) Transfer Procedure - 900 Prior Art, Classification, Search
903.08(d) Transfer Procedure
TRANSFER BETWEEN ART UNITS WITHIN THE SAME TECHNOLOGY CENTER
All transfers within one Technology Center (TC) must be called to the attention of the technical support staff so that the PALM system may be updated to correctly indicate the assignment of the nonprovisional application.
Where there is a difference of opinion among the supervisory patent examiners as to assignment within the same TC, the matter may be submitted to the post classifier assigned to that TC for resolution.
TRANSFERS BETWEEN DIFFERENT TECHNOLOGY CENTERS
Where a supervisory patent examiner (SPE) believes an application, either new or amended, does not belong in his or her art unit, he or she may use form PTO-447A to request transfer of the application from his or her art unit (the "originating" art unit) to another art unit of a different TC (the "receiving" art unit). The supervisory patent examiner of the originating art unit dates and completes Section I of the PTO-447A, giving a full explanation of the reasons for classification in the other art unit.
In the space provided on the form, at least one of the following must be included:
(A) Identification of the controlling claim examinable in another TC;
(B) Identification of any existing informal transfer agreement; or
(C) Other reasons - with full explanation.
Each application must be fully reviewed before it is sent to the receiving art unit of a different TC or a post classifier. In order to ensure that the application has been thoroughly reviewed by the originating TC prior to the transfer, the SPE of the originating art unit requesting the transfer of the application must send the application to an individual designated by his or her TC for review of the application before the appli\-cation leaves the originating TC. The designated individual will be responsible for ensuring that the written record is clear and that all appropriate areas in the originating TC have been considered with respect to the classification of the application. If the designated individual determines that another area within the TC should be considered before it is sent out of the TC, the application should be forwarded to that area for consideration. Otherwise, the designated individual should initial in the "gatekeeper review" section of the PTO 447A, and forward the application to the appropriate art unit in another TC. The designated individual also reviews applications for patterns of errors in initial patent application routing. If such patterns are found, the patent application assistants in the Office of Initial Patent Examination (OIPE) should be informed.
In all cases when transfer is initiated, the application must be sent to another art unit. It cannot be sent directly to a classification unit. Even if the application is informal, confusing, or contains unfamiliar subject matter, the examiner must make his or her best judgment as to where the application should be classified and attempt to transfer it there.
Where an application's claims include a combination of limitations for plural disciplines (chemical, electrical, or mechanical), a primary examiner may request transfer to another discipline, notwithstanding the fact that the controlling claims are properly classified in his or her art unit, on the ground that the application is "best examinable" in the other discipline. In this instance, the examiner requesting transfer should cite art showing the limitations classifiable in his or her discipline. For discussion of the situations in which assignment of an application on a "best examinable" basis may be proper, see MPEP § 903.08(e).
PROCESS FOR TRANSFER
When the supervisory patent examiner or primary examiner determines that transfer is proper, he or she staples the form PTO-447A to the face of the file and gives it to the technical support staff for forwarding for review.
If the receiving examiner agrees to accept the application, he or she classifies and assigns the application and initials the form PTO-447A. The transfer is effected by the technical support staff in the TC which accepts the application for transfer.
If the receiving art unit refuses to accept the application, the reasons for refusal, the date, and the examiner's name are placed on the form PTO-447A in Section II "DISPOSITION BY RECEIVING TC." Where an application is refused by the receiving art unit based upon the classification of any claim, the application will be forwarded to a post classifier in the receiving TC for resolution of any classification issues. The post classifier will consider the statements and evidence of both the originating and receiving art units and will assign the application to the art unit which has jurisdiction over the art in which the controlling claims of the application are properly classified. This may be the originating, receiving, or another art unit as appropriate. The post classifier writes the assigned class and art unit number and his or her initials on the face of the file wrapper or PALM bibliographic data sheet and on form PTO-447A, briefly giving reasons for assignment of the application in the space of the form.
In order for the post classifiers to assign an application outside of their TC, a concurring signature of an SPE or designated examiner or classifier for the particular class or art unit where the application is being assigned will be required. Generally, decisions by post classifiers are final; no reconsiderations are permitted.
Under certain circumstances, a post classifier may, contrary to controlling classification rules, assign an application to a class or TC which in his or her judgment is better equipped to examine the application. This is fully described in paragraphs 6 and 9 of MPEP § 903.08(e).
Any application assignment disputes that cannot be resolved by post classifiers in the TCs will be resolved by a panel which consists of designated representatives from each TC. Where an application assignment dispute cannot be resolved by a post classifier, the post classifier will check the appropriate box on the form PTO-447A and forward the application to a designated panel member of the TC for decision. The decisions of the panel will be final. Request for reconsideration of the decision of the panel will be considered ONLY in the event that a TC has not had the opportunity to review the application prior to the decision from the panel. Reconsideration must be requested within 2 calendar weeks of the receipt in an art unit of a decision of the panel.
Every application, no matter how peculiar or confusing, must be assigned somewhere for examination. Thus, in contesting the assignment of an application, an examiner should point out another class that is thought to be a better place to classify the application, rather than simply arguing that the application does not fit the examiner's class.
Where an application is refused by the receiving art unit solely for reasons within the purview of the examining corps, e.g., propriety of a restriction requirement, timeliness of transfer, etc., and there is no dispute as to the classification of any claim, the application should be returned directly to the art unit that raised the issue using the appropriate line in Section II of the PTO-447A.
If an application contains both classification issues and examining corps issues, e.g., a dispute both as to the classification of claims and the propriety of restriction, the examining issues should be resolved first. If thereafter classification issues still need to be addressed, use of Form PTO-447A, as above, is appropriate. For the procedure in the classification groups for applications which contain examining corps issues, see MPEP § 903.08(e), paragraph 13.
The time limits for requesting or refusing transfer are as follows:
(A) In a new application, transfer must be requested within 2 calendar weeks of the TC receipt date of the application.
(B) In an amended application transfer must be requested within 2 calendar weeks of the TC receipt date of the amendment upon which the request for transfer is based.
(C) The time limit for refusal of a transfer request is 2 calendar weeks from the receipt of the transfer request in the receiving art unit.
Exceptions to these time limits are:
(A) All new applications (docketed and undocketed) transferred purely for security reasons.
(B) New reissue applications should be retained in the TC indicated by the notice of filing in the Official Gazette for 2 months following the notice before transfer.
(C) PCT applications and other special applications for which a different time limit is set by competent authority.
Failure to fill in the date on the form by either the originating examiner or the receiving examiner may result in the assignment of the application to his or her art unit.
If a request for transfer is not made or refused within the 2-week time limit, the art unit having physical possession of the application must keep it for purposes of examination. However, if the TC Directors having authority over the art units involved agree that strict adherence to the 2-week time limit would not provide the best examination for the application, they may waive the requirement.
The question of need for a restriction requirement does not influence the determination of transfer.
The regular messenger service may be used to effect the transfer of applications, except that applications filed under the Patent Cooperation Treaty and such other special applications designated by competent authority must be hand-carried throughout the transfer process unless an established practice is in place for expediting the delivery of these applications. If an application is hand-carried at any stage of the transfer process, care must be taken to update the location of the application on the PALM system each time the application is moved.
