37 CFR 1.211 (pre‑AIA): Publication of applications

Taken from the Ninth Edition of the MPEP, Revision 07.2015, Last Revised in November 2015

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1.211 (pre‑AIA)    Publication of applications.

[Editor Note: Para. (c) below is not applicable to patent applications filed under 35 U.S.C. 111(a) or 363 on or after September 16, 2012*]

  • (a) Each U.S. national application for patent filed in the Office under 35 U.S.C.111(a) and each international application in compliance with 35 U.S.C. 371 will be published promptly after the expiration of a period of eighteen months from the earliest filing date for which a benefit is sought under title 35, United States Code, unless:
    • (1) The application is recognized by the Office as no longer pending;
    • (2) The application is national security classified (see § 5.2(c) ), subject to a secrecy order under 35 U.S.C. 181, or under national security review;
    • (3) The application has issued as a patent in sufficient time to be removed from the publication process; or
    • (4) The application was filed with a nonpublication request in compliance with § 1.213(a).
  • (b) Provisional applications under 35 U.S.C. 111(b) shall not be published, and design applications under 35 U.S.C. chapter 16 and reissue applications under 35 U.S.C. chapter 25 shall not be published under this section.
  • (c) An application filed under 35 U.S.C. 111(a) will not be published until it includes the basic filing fee (§ 1.16(a) or 1.16(c)), any English translation required by § 1.52(d), and an executed oath or declaration under § 1.63. The Office may delay publishing any application until it includes any application size fee required by the Office under § 1.16(s) or § 1.492(j), a specification having papers in compliance with § 1.52 and an abstract (§ 1.72(b)), drawings in compliance with § 1.84, and a sequence listing in compliance with §§ 1.821 through 1.825 (if applicable), and until any petition under § 1.47 is granted.
  • (d) The Office may refuse to publish an application, or to include a portion of an application in the patent application publication (§ 1.215 ), if publication of the application or portion thereof would violate Federal or state law, or if the application or portion thereof contains offensive or disparaging material.
  • (e) The publication fee set forth in § 1.18(d) must be paid in each application published under this section before the patent will be granted. If an application is subject to publication under this section, the sum specified in the notice of allowance under § 1.311 will also include the publication fee which must be paid within three months from the date of mailing of the notice of allowance to avoid abandonment of the application. This three-month period is not extendable. If the application is not published under this section, the publication fee (if paid) will be refunded.
[Added, 65 FR 57024, Sept. 20, 2000, effective Nov. 29, 2000; para. (c) revised, 70 FR 3880, Jan. 27, 2005, effective Dec. 8, 2004]
[*See § 1.211 for more information and for the rule applicable to patent applications filed under 35 U.S.C. 111(a) or 363 on or after Sept. 16, 2012]