1300

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# Chapter 1300 Allowance and Issue

1301
Substantially Allowable Case, Special

1302
Final Review and Preparation for Issue

1302.01
General Review of Disclosure

1302.02
Requirement for a Rewritten Specification

1302.03
Erasure of Notations

1302.04
Examiner's Amendments and Changes

1302.04 (a)
Title of Invention

1302.04 (b)
Cancellation of Non-Statutory Claim

1302.04 (c)
Cancellation of Claims to Non-Elected

Invention

1302.04 (d)
Cancellation of Claims Lost in Inter-
ference

1302.04 (e)
Data of Copending Application Referred
to-Brought up to Date

\- 1302.04 (f)
Identification of Claims

1302.05
Correction of Drawing

1302.06
Prior Foreign Applications

1302.07
Interference Search

1302.08
Notations on File Wrapper

1302.09
Notations on Drawings

1302.10
Classification and Notations on Issue Slip
(Form No. 574)

1302.11:
Reference to Assignment Branch

1302.12
Listing of References

1302.13

Signing

1303
Notice of Allowance

1303.01
Amendment Received after Allowance

1303.02
Undelivered

1303.03
Not Withheld Due to Death of Inventor

1304

Withholding From Issue of "Secrecy Order"
Cases

1304.01
Amendments After D-10 Notice

1305
Jurisdiction

1306

Public Law 690 Cases

1307

Change in Classification of Cases Which are in
Issue

1308
Withdrawal From Issue

1308.01
Rejection After Allowance

1308.02
Form of Letter

1308.03
For Interference Purposes.

1309
Issue of Patent

1309.01
Companion Case Queries

1309.02
"Printer Waiting" Cases

1309.03
Protest Against Issue

## 1301

## Substantially Allowable Case, Special

When an application is in condition for allow-
ance, except as to matters of form, the case will
be considered special and prompt action taken
to require correction of formal matters. See
710.02 (b) paragraph (a).

## 1302 Final Review and Preparation for Issue

### 1302.01 General Review of Disclosure

When an application is apparently ready for
allowance, it should be reviewed by the Ex-
aminer to make certain that the whole case meets
all formal requirements and particularly that
the general statement of invention and the de-
scriptive matter are confined to the invention
to which the allowed claims are directed and
that the language of the claims finds full sup-
port and elucidation in the specification.
Neglect to give due attention to these matters
may lead to confusion as to the scope of the
patent.

Frequently the invention as originally de-
scribed and claimed was of much greater scope
than that defined in the claims as allowed. Some
or much of the subject matter disclosed may be
entirely outside the bounds of the claims ac-
cepted by the applicant. In such case the Ex-
aminer should require the applicant to modify
his general statement of invention and restrict
his descriptive matter so as to be in harmony
with the claims. However valuable for refer-
ence purposes the Examiner may consider the
matter which is extraneous to the claimed in-
vention, patents should be confined in their dis-
closures to the respective inventions patented.
(Rule 71.) Of course enough background
should be included to make the invention
clearly understandable. See 608.01 (d) and
608.01 (e).

There should be a verbal basis in the specifi-
cation for the terminology used in the claims.
Usually the original claims follow the nomen-
clature of the specification; but sometimes in
amending the claims or in adding new claims,
applicant employs terms that do not appear in
the specification. This may result in uncertainty
as to the interpretation to be given such terms.
See 608.04.

Where.a copending application is referred to-
in the specification, the Examiner should as-
certain whether it has matured into a patent or
become abandoned and that fact inserted with
appropriate data by Examiner's amendment.
If the file wrapper has a retention label (Form
PO-150) on it, the application specified on the
label should be inspected to see that the case at
hand properly complies with Rule 78. See also
202.

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### 1302.02

The claims should be renumbered as required
by Rule 126, and particular attention should be
given to claims dependent on previous claims
to see that the numbering is consistent. See
608.01 (j) and 608.01 (n).

The title should also be checked. It should
be as short and specific as possible. If a satis-
factory title is not supplied by the applicant, the
Examiner may change the title by Examiner's
amendment on or after allowance. See 606 and
606.01.

### 1302.02 Specification To Be Rewritten if Confused by Erasures and Amendments

The Examiners are directed before passing appli-
cations to issue to carefully examine all papers and
see that they are in such shape and condition as-to
reduce to a minimum the possibility of error by the
printers. Whenever interlineations or cancellation
have been made in the specification or amendments
which would lead to confusion and mistake, the Ex-
aminers should require the entire portion of specifica-
tion affected to be rewritten before passing the case
to issue. (Order 525, Revised.) See Rule 125 in
608.01 (q).

### 1302.03 Erasure of Notations Re- quired

"All pencil notes made by the Examiners must be
erased when the case is passed to issue." (Order 560,
Revised.)

### 1302.04 Examiner's Amendments and Changes

Except by formal amendment duly signed or as
hereinafter provided, no corrections, erasures, or in-
terlineations may be made in the body of written
portions of the specification or any other paper filed
in the application for patent. [See Rule 121]

Correction of the following obvious errors only may
be made with pen by the Examiner of the case who
will then initial the sheet margin and assume full
responsibility for the change.

1\. Misspelled words.

2\. Disagreement of a noun with its verb.

3\. Inconsistent "case" of a pronoun.

4\. Disagreement between a reference character as
used in the description and on the drawing. The
character may be corrected in the description but
only when the Examiner is certain of the propriety
of the change.

Other obvious informalities in the application may
be corrected by the Examiner, but such corrections
must be in the form of an amendment, approved and
signed by the Principal Examiner, placed in the file,
and made a part of the record. A copy of the amend-
ment is sent to the applicant. The changes specified

in the amendment are entered by the clerk in the
regular way.

No other changes may be made by any person in
any record of this office without the written approval
of the Commissioner of Patents. (Extract from
Order 3141.)

Where an application is ready for issue except for
a slight defect in the drawing not involving change
in structure, the Examiner will note in pencil on the
drawing the addition or alteration to be made. He
will also prepare an Examiner's Amendment indi-
cating the changes made and send the drawing to
the Draftsman for the required correction. (Ex-
tract from Order 4009.)

For examples of drawing changes that may be
made by Examiner's Amendment, see 608.02
(x).

In reviewing the application all errors should
be carefully noted. It is not a matter of im-
portance whether the language is the best that
could be chosen ; it is, however, essential that it
be clear in meaning, and free from errors in
syntax.

An Examiner's amendment is usually made
at the time a case is being prepared for issue by
the Examiner, and a copy of the amendment is
mailed with the notice of allowance. However,
such amendment may also be necessary after the
proof of the patent is read and the case is sent
up to the Examiner with a "printer waiting"
slip (Form PO-97). A copy of the amend-
ment is sent to applicant even if the application
is already in the printer's hands.

### 1302.04 (a) Title of Invention

Where the title of the invention is not spe-
cific to the invention as claimed, the Examiner
may change the title by Examiner's Amend-
ment on or after allowance. See 606.01.

### 1302.04 (b) Cancelation of Non-Statu- tory Claim

When a case is otherwise in condition for al-
lowance the Examiner may cancel an obviously
non-statutory claim such as one to "A device
substantially as shown and described." Appli-
cant should be notified of the cancelation of the
claim by an Examiner's Amendment. See
706.03 (h).

#### 1302.04 (e) Cancelation of Claims to Non-Elected Invention

See 821.02 (a) and 821.03 (a).

#### 1302.04 (d) Cancelation of Claim Lost in Interference

See 1109.02.

(

(

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##### 1302.04 (e) Data of Copending Appli- cation Referred to Should Be Brought Up to Date

Where a copending application is referred to
in the specification of an application which is
ready for allowance, the Examiner should as-
certain whether said copending application has
matured into a patent or has become abandoned
and if so, insert by Examiner's Amendment the
number and date of the patent or the fact that
the case has become abandoned.

This procedure is also followed when an ap-
plication is referred to the Examiner by the
Issue and Gazette Branch in which application
there appears a reference to another applica-
tion by serial number without any statement as
to whether the application referred to is pat-
ented or abandoned. If it is determined by the
Examiner that such case is patented or aban-
doned he will indicate this fact in the specifi-
cation by appropriate Examiner's Amendment.
See 1309.01.

### 1302.04 (f) Identification of Claims

In entering an Examiner's Amendment in a claim,
the original number, as well as the number of the
claim as it appears in the allowed application, should
be referred to. (Extract from Notice of Aug. 26,
1929.)

### 1302.05 Correction of Drawing

Where a case otherwise ready for issue re-
quires correction of the drawing, the Examiner,
before sending the file to the Draftsman, should
attach thereto a slip indicating that the case is
ready for allowance. Slight defects may be cor-
rected on the Examiner's initiative as set forth
in 608.02 (x) and an Examiner's Amendment
prepared as set forth in 1302.04.

### 1302.06 Prior Foreign Applications

An applicant will not be required in any case to
file a statement setting forth the data of any foreign
patent granted him, or to others with his knowledge
or consent between the date of execution of his speci-
fication and the date of the payment of the final
fee. (Order 1239.)

The Examiners are directed on passing to issue
any application in which an earlier foreign appli-
cation, or applications, for the same invention has
been filed, to enter, (if entry has not been made)
at the bottom of the face of the file wrapper the
earliest- date of filing in any foreign country and
the name of such country; and in the event that
more than one foreign application has been filed
outside the twelve-month period, the filing date and
name of country of each application, will also be

thus entered. . The oath should be inspected for
these dates. In cases given the benefit of the Boykin
Act (Public Law 690) the label pasted on the face
of the file wrapper will replace the entry of the date
of any foreign application on the file wrapper.
(Order 3233, Revised.)

In the case of any foreign application filed
more than 12 months prior to the U. S. filing
date, the Examiner should ascertain whether
it has matured into a patent by a search of the
records in the Scientific Library, noting on the
inside of the left-hand flap of the wrapper the
date of such search. If no evidence that such
foreign application has gone to patent is found,
it is assumed that no foreign patent has issued
and the case is sent to issue. Of course, no
search is necessary in the case of a foreign ap-
plication which qualifies for the right of pri-
ority under the provisions of Public Law 690.
See 201.13.

### 1302.07 Interference Search

Assuming that the case is found ready for
issue, the Examiner makes an "interference
search". To do this, he inspects all the pending
drawings (or all the digests of cases if the in-
vention is not susceptible of illustration) in the
relevant subclasses of the class in which the ap-
plication is classified, and all other pertinent
classes, whether in his division or elsewhere, in
order to ascertain whether any other applicant
is claiming substantially the same subject mat-
ter as is being allowed in the case in hand.
When any of the drawings or digests shows such
a condition to be likely, he examines the cor-
responding file. See 1101.01 (c).

If the search does not disclose any interfering
application, the Examiner should prepare the
case for issue.

### 1302.08 Notations on File Wrapper

The Examiner fills out in ink the form at the
bottom of the face of the file wrapper.

Examiners will ordinarily designate but one claim
on each invention to be published in the Official
Gazette in connection with each original or reissued
patent. The broadest claim should be selected.
When a plurality of inventions are claimed in an
application, additional claims to a maximum of five
may be designated for publication. (Order 2422,
Revised)

The file wrapper bears on the left hand mar-
gin the legend: "Division of Application
No. ____ , Filed ______ , 19 __. " This is to be
filled in with the serial number and date of any
prior application of which the one in question
is a division, a continuation or a substitute, the
word "Division" being replaced by "Continua-

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tion," and the words "Division of" replaced by
"Substitute" as may be required. If the prior
application has issued as a patent, the patent
number and date should also be supplied. If
the application at hand is a division of a divi-
sion, the data of all cases involved should be
given. . See 202.02.

In the case of a continuation-in-part, no no-
tation on the margin of the file wrapper is
made. The letters "C"P" are stamped on the ..
face of the wrapper at the bottom thereof. See
202.02.

Fee-exempt applications are to be endorsed
on the file jacket: "Granted under the Act of
March 3, 1883 as amended April 30, 1928."

Chapter 200 explains the types of applica-
tions here mentioned.

### 1302.09 Notations on Drawings

On the margin of the first sheet of drawing,
the Examiner indicates the figure which he
selects for printing in the Official Gazette and
also the final official classification of the case.
This figure should be consistent with the claim
selected for the Official Gazette. If there is no
figure illustrative of or helpful in understand-
ing the claimed invention, no figure need be
selected. "None" may be written after "O. G.
Fig." On the lower margin, the Examiner
writes the allowance mark (=).

### 1302.10 Classification and Notations on Issue Slip (Form PO-270)

See 903.07 and 903.07 (b).

### 1302.11 Reference to Assignment Branch

Applications filed by an executor or adminis-
trator, or the equivalent, or a guardian of an
insane person, or in which an executor or admin-
istrator or guardian has intervened; or in which
the death of the inventor has been suggested,
and also all divisional, continuation, continua-
tion-in-part, substitute and reissue applications
must be referred to the Assignment Branch be-
fore passing them to issue. (See 409.01 (a)
and 306.)

### 1302.12 Listing of References

In order that a list of all references cited during
the prosecution of an application for patent may
be available for printing as part of the issued patent,
the Primary Examiner will have listed at the time
the case is being prepared for issue all references
which have been cited during the prosecution, in-
cluding those appearing in Board of Appeals deci-
sions and pertinent references in motions to dissolve.
When a case is allowed on the first action, the Ex-
aminer should send a letter along with the Notice"
of Allowance, citing pertinent art. These references

will be listed on Form PO-98. : (Notice of Dec. 19,
1946, Revised.)

Foreign patents are listed by the actual name of
the country, as for example "Great Britain" rather
than "British" and "France" rather than "French".
The name of the foreign country should not be ab-
breviated. (Notice of April 2, 1947, Revised.)

The list of the United States patents must be in
numerical order and where there is more than one
foreign patent from the same country these should
be listed in numerical order. (Memorandum of Aug.
5, 1947, Revised.)

An English language patent corresponding to a
foreign language patent shall be cited but once and
then in parentheses immediately below the foreign
language patent in the following manner:

FOREIGN PATENTS

Country

Number

Date

France

860,963

Oct. 15, 1940

(Corresponding. U. S. - 2,537,757, Jan. 9, 1951)

The Examiner is not expected to make a special
search for corresponding English language patents.
(Extract from Notice of September 27, 1951.)

In order to avoid possible errors in the listing of
references, the following procedure should always
be followed:

Whenever a reference has been incorrectly cited
in any official paper forming part of an application
file, and such citation has been correctly given in an
ensuing Office action, the Examiner is directed to
correct the error, in ink, in the paper in which the
error appears, and place his initials on the margin
of such paper, together with a notation of the paper
number of the action in which the citation has been
correctly given.

In any case, otherwise ready for issue, in which
the erroneous citation has not been formally cor-
rected in an official paper, the Examiner is directed
to correct the citation by way of an Examiner's
amendment. (Notice of May 13, 1948.)

Where an applicant in an amendatory paper refers
to a reference which is subsequently relied on by the
Examiner, such reference shall be cited by the Exam-
iner in the usual manner. (Notice of Dec. 20, 1946.)

Any new reference cited when the case is in
issue, under the practice of 1308.01, should be
added to the list on Form PO-98.

### 1302.13 Signing

After revision by the clerk and correction of
any discovered informalities, the application
file is signed by the Primary Examiner.

### 1303 Notice of Allowance

After the application file has been signed by
the Primary Examiner, the typist fills out the
appropriate form of notice of allowance as de-
scribed in the Clerk's Manual.

When the notice of allowance is mailed its
date is also endorsed on the file wrapper.

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Branch, and the date of sending the notice
changed to agree with the date of such remail-
ing.

## 1303.03 Not Withheld Due to Death of Inventor

The notice of allowance will not be withheld
due to death of the inventor even though the
executor or administrator has not intervened.
See 409.01 (e).

## 1304 Withholding From Issue of "Se- crecy Order" Cases

"Secrecy Order" cases are not sent to issue
even when all of the claims have been allowed.
They are prepared for issue in the same way as
other cases but instead of mailing an ordinary
notice of allowance a D-10 Notice is sent. See
107.01.

If the "Secrecy Order" in a case is withdrawn
after the D-10 notice is mailed, the case should
then be treated like an ordinary application in
condition for allowance.

"Special Handling" cases and Government-
owned-three-year cases are sent to Div. 70 be-
fore allowance. See sections 108 and 109.

## 1304.01 Amendments After D-10 No- tice

For amendments received after D-10 Notice,
see 107.01.

### 1305 Jurisdiction

After the notice of allowance is mailed, the
case is sent to the Issue and Gazette Branch.
It is then technically no longer within the juris-
diction of the Primary Examiner. However,
the Examiner may make Examiner's amend-
ments correcting obvious errors, as, when
brought to the attention of the Examiner by
the printer, and also may admit amendments
under Rule 312 which are confined to matters
of form in specification or claims, or to the
cancellation of a claim or claims. The Exam-
iner's action on other amendments under Rule
312 consists of a recommendation to the Com-
missioner.

To regain jurisdiction over the case, the Ex-
aminer must write a letter to the Commissioner
requesting it. See 1308 and 1308.02.

Once the patent has been granted, the Office
has no control over it except for the issuance of
a Certificate of Correction as provided for in
Rule 322. The applicant may, however, take
steps to have the Office change the patent grant
in several ways. See Chapter 14.

## 1306 Public Law 690 Cases See 201.16 (p), 201.16 (q), 201.16 (u).

### 1307 Change in Classification of Cases Which Are in Issue

See 903.07.

### 1308 Withdrawal From Issue

Rule 315 Withdrawal from issue. After the notice
of allowance of an application is sent, the case will not
be withdrawn from issue except by approval of the
Commissioner, and if withdrawn for further action on
the part of the Office, a new notice of allowance will be
sent if the application is again allowed. When the
final fee has been paid, and the patent to be issued has
received its date and number, the application will not
be withdrawn from issue on account of any mistake or
change of purpose of the applicant, his attorney or his
agent, nor for the purpose of enabling the inventor to
procure a foreign patent, nor for any other reasons
except mistake on the part of the Office, or because of
fraud or illegality in the application, or for inter-
ference. Express abandonment of the application (rule
138) may not be recognized by the Office unless it is
actually received by appropriate officials in time to act
thereon before the date of issue.

[Old Rule 165]

If the applicant wishes to have the case with-
drawn from issue, he must petition the Commis-
sioner. Withdrawal is permitted only for the
reasons stated in the rule. For withdrawal pro-
cedure by Examiner see 1308.02.

### 1308.01 Rejection After Allowance

A claim noted as allowable shall thereafter be re-
jected only with the approval of the Primary
Examiner. Great care should be exercised in au-
thorizing such rejection. (Order 3157)

When a new reference is discovered, which obvi-
ously is applicable to one or more of the allowed
claims in an application in issue, and where a suffi-
cient portion of the statutory period for payment of
final fee remains, the Examiner is authorized to
enter a letter informing applicant of the proposal
of requesting withdrawal from issue for the purpose
of rejecting the claim or claims as fully met by, or
obviously unpatentable over, the new reference. The
letter should apply the reference in detail and should
also set a time limit (within such statutory period),
within which applicant may respond by way of argu-
ment or amendment under Rule 312 to overcome the
reference and avoid the necessity for withdrawal
from issue. Such a letter, with the reference and
file, should be submitted to the Supervisory Exam-
iner before mailing. (Notice of March 15, 1950.)

If insufficient time remains to carry out the
above, or if no response is received, or if a

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response is filed and it fails to overcome the
reference, or if the above appears fruitless, the
Primary Examiner in a letter addressed to the
Commissioner requests that the application be
withdrawn from issue for the purpose of apply-
ing the new reference. This letter should cite
the reference, and, if need be, briefly state its
application. Upon approval of this request by
the Commissioner, the letter is taken to the
Issue and Gazette Branch and the application
is stamped "Withdrawn" over the allowance
signature of the Primary Examiner. It is then
returned to the division from which it came;
the clerk enters the withdrawal from the issue
on her register, and the application is thus re-
stored to its former status as a pending appli-
cation awaiting action by the Examiner. "The
Examiner at once writes a letter in the case
stating that the application has been with-
drawn from issue, citing the new reference, and
rejecting the claims met thereby.

If the Examiner's proposed action is not ap-
proved, the letter requesting withdrawal from
issue should not be placed in the file.

### 1308.02 Form of Letter

Where it becomes necessary to withdraw a
case from issue for the purpose of rejecting
claims, the following letter will serve as a
form :

Application of
(Date)
John Doe
Serial No. 85,963
Washing Machine
Withdrawal from Issue

Filed Feb. 14, 1933
Allowed Mar. 6, 1935

Hon. Commissioner of Patents,
SIR :

It is requested that the above-entitled applica-
tion be withdrawn from issue for the purpose of
rejecting claims in view of the newly discovered
reference, the patent No.
to
(Explain, if necessary.)
Respectfully,

Examiner.

A request that a case be withdrawn from issue,
should not be transmitted through the docket clerk
but should be sent with the file directly to the
Commissioner by the Primary Examiner. (Notice
of November 16, 1922.)

### 1308.03 For Interference Purposes

It may be necessary to withdraw a case from
issue for reasons connected with an interference.
For the procedure to be followed see 1101.01
(o) and 1112.04.

### 1309 Issue of Patent

Ine files of allowed cases (not patented files)

are kept in the Issue and Gazette Branch, ar-
ranged in the order of dates of allowance.
When the final fee is paid within the time al-
lowed by law, the drawing is obtained by the
Issue and Gazette Branch and the file is given
a patent number and date. The file then goes
to the Assignment Branch for examination as
to assignments after which it is sent to the
Government Printing Office for printing of the
specification. A bond paper copy of the draw-
ing and specification is ribboned and sealed in
the Issue and Gazette Branch and finally signed
by the Commissioner or Law Examiner.

### 1309.01 Companion Case Queries

In those allowed cases in which another applica-
tion is referred to and no statement has been made
as to whether the other application is patented or
abandoned, the Issue and Gazette Branch will send
the case to the examining division with a Companion
Case Query Slip (Form PO-149) and a retention
label (Form PO-150).

Upon receiving such a case the Examiner will
promptly check the current status of the application
referred to and report the same on the query slip
in accordance with the instructions thereon. If the
application referred to is patented or abandoned,
he will indicate this fact in the specification of the
allowed case by appropriate Examiner's amendment.
The retention label will be used in the manner indi-
cated on the query slip.

If the pending application is referred to in more
than one allowed application, it is not necessary to
use more than one retention label. Instead, the
Examiner will merely add the necessary data to the
label already on the pending application.

Query slips are used at the time the application is
being prepared for printing so that the data in the
specification of the patent will be as complete as
possible. (Memoranda of Dec. 1, 1947 and June 25,
1948, Revised.)

See 1302.04 (e) for Examiner's Amendment
to be written in connection with query slips.

### 1309.02 "Printer Waiting" Cases

After printing of the specification the proof
is read by employees of the Government Print-
ing Office. Where apparent error is found, the
file with the proof is transmitted to the Exam-
iner, attention being called on an attached
"printer waiting" slip (Form PO-97) to the
supposed errors.

All "printer waiting" cases must receive immediate
attention and be returned to the Issue and Gazette
Branch as soon as possible (preferably within three
hours). (Extract from Notice of Dec. 6, 1920)

If the Examiner concurs in the criticisms, the
errors should, if possible, be corrected in ink and

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initialed, or be corrected by Examiner's amend-
ment. See 1302.04.

If the required correction cannot be cured by
Examiner's amendment, the application may
have to be withdrawn from issue. This may
sometimes be avoided if the attorney or his rep-
resentative is in Washington. In such cases, he
should be called in immediately, and the error
may perhaps be corrected by amendment under
Rule 312.

If the Examiner finds the specification cor-
rect as it stands, he endorses the slip to that
effect.

Cases containing chemical or other formulae,
equations and tables are also sent to the Exam-
iner with "printer waiting" slips for checking.

After correction or checking, the application
file and proof are returned to the Issue and Ga-
zette Branch. Because it is so important that
the file and proof be returned promptly, they
must be taken to the Issue and Gazette Branch
by a member of the Examining Division and
not sent through the envelope messenger service.

### 1309.03 Protest Against Issue

When a protest is filed against the issuance of a
patent the same shall, after consideration by the
Examiner, be forwarded to the Supervisory Exam-
iner and shall not be entered in the file of the appli-
cation to which it refers. (Order 1805, Revised.)

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