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Fixing mistakes in patent application publications

When it comes to patent applications, there are a host of reasons as to why an inventor would want it to be published, meaning made available to the public. For instance, publication serves as notice to potential competitors that a product or technology in a particular area is currently being developed, provides recognition to inventors even if the application is ultimately rejected, and helps ensure the protection of provisional rights.

Given this reality, it's understandable how an inventor could be particularly dismayed to learn that the U.S. Patent and Trademark Office has made some sort of error in publishing the patent application and left wondering what, if anything, they can do about it.

The good news is that the USTPO does provide a process through which requests for corrections to published patent applications may be submitted. However, federal law makes clear that these requests will only be honored in those situations where the USTPO has made a material mistake.

A material mistake is defined as one that affects the capacity of the public to do any of the following:

  • Understand the technical disclosure of the patent application publication
  • Ascertain the scope of the patent application publication
  • Ascertain the scope of provisional rights that might be enforced by an applicant should a patent be issued

While things like missing drawings, missing specifications or missing claims would rise to the level of a material error, things like typos, missing headers or missing assignment information would not.

Requests for corrections to published patent applications must be made in writing and include the following elements:

  • A copy of the patent application publication clearly highlighting the material mistake
  • A reference to the page and line number in the original patent application where the correct information can be found

It's important to know that these requests for correction may only be submitted within two months of the date of the patent application publication.

To learn more about this or other important matters relating to patents, consider speaking with an experienced legal professional.

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