1901.01 Who Can Protest [R-10.2019]
Any member of the public, including private persons, corporate entities, and government agencies, may file a protest under 37 CFR 1.291. A protest may be filed by an attorney or other representative on behalf of an unnamed real party in interest. 37 CFR 1.291 does not require that the real party in interest be identified. In accordance with 37 CFR 1.291(b)(2), a statement must accompany the protest that it is the first protest submitted in the application by the real party in interest who is submitting the protest. Where a protest is not the first protest by the real party in interest, 37 CFR 1.291(b)(2) requires compliance with 37 CFR 1.291(c)(5). The requirements of 37 CFR 1.291(c)(5) cannot be avoided by multiple protests submitted by different people representing the same real party in interest. 37 CFR 1.291(b)(2) does not apply to the first protest in an application. A protestor may not know if a protest has already been filed (by another), and may have no way of checking (e.g., a non-reissue application for which the file wrapper is not publicly available). Should the protest (inadvertently or otherwise) fail to include the statement that the protest is the first protest by the real party in interest filing the current protest and fail to comply with 37 CFR 1.291(c)(5), if, in fact, the protest is the first filed protest in an application, it will be considered where all other conditions are met.