In a recent communication, the United States Patent and Trademark Office (USPTO) announced an improved and more efficient process for choosing drawing figures to be featured on the front page of pre-grant patent publications. The new development, which will take effect from October 10, 2023, provides applicants with more control over the illustration of their inventions in patent publications.
In the past, the USPTO published non-provisional utility and plant patent applications as pre-grant publications. These publications included a visual illustration of the invention in the form of a drawing on the first page. Although applicants had the option of proposing a preferred figure by specifying the figure number in their Application Transmittal Letter or their Application Data Sheet (ADS), the final decision on which figure to publish rested with the USPTO. This occasionally resulted in deviations from the applicant’s suggested figure.
With the upcoming change, applicants will have a more direct influence on the visual representation of their inventions. The USPTO will now exclusively use the drawing figure suggested by the applicant for the front page of pre-grant publications, provided the suggestion is included on a compliant ADS timely filed before the initiation of the publication process – which usually starts more than 14 weeks before the projected publication date listed on the filing receipt. This adjustment aims to simplify the publication procedure, reduce costs, and increase the overall applicant satisfaction.
It is worth noting that including the suggested figure in an application transmittal letter will no longer be considered. Additionally, if the applicant does not include a figure suggestion in an ADS filed before the USPTO begins its publishing process, the USPTO will select a figure.
Although the change aims at improving the efficiency of the pre-grant publication process and bringing more predictability to patent applicants, the USPTO is also clear that they are not bound by the applicant’s figure suggestion. This simply means that if, for whatever reason, the USPTO does not use the figure suggested by the applicant for the first page of the pre-grant publication, it is not a material mistake necessitating the publication of a corrected patent application.
Written by Petter Andrésen
IP Operations Manager, Yara International ASA.
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