§111. Application

(a) In General.-

(1) Written application.-An application for patent shall be made, or authorized to be made, by the inventor, except as otherwise provided in this title, in writing to the Commissioner.

(2) Contents.-Such application shall include-

(A) a specification as prescribed by section 112 of this title;

(B) a drawing as prescribed by section 113 of this title; and

(C) an oath by the applicant as prescribed by section 115 of this title.

(3) Fee and oath.-The application must be accompanied by the fee required by law. The fee and oath may be submitted after the specification and any required drawing are submitted, within such period and under such conditions, including the payment of a surcharge, as may be prescribed by the Commissioner.

(4) Failure to submit.-Upon failure to submit the fee and oath within such prescribed period, the application shall be regarded as abandoned, unless it is shown to the satisfaction of the Commissioner that the delay in submitting the fee and oath was unavoidable or unintentional. The filing date of an application shall be the date on which the specification and any required drawing are received in the Patent and Trademark Office.

(b) Provisional Application.-

(1) Authorization.-A provisional application for patent shall be made or authorized to be made by the inventor, except as otherwise provided in this title, in writing to the Commissioner. Such application shall include-

(A) a specification as prescribed by the first paragraph of section 112 of this title; and

(B) a drawing as prescribed by section 113 of this title.

(2) Claim.-A claim, as required by the second through fifth paragraphs of section 112, shall not be required in a provisional application.

(3) Fee.-(A) The application must be accompanied by the fee required by law.

(B) The fee may be submitted after the specification and any required drawing are submitted, within such period and under such conditions, including the payment of a surcharge, as may be prescribed by the Commissioner.

(C) Upon failure to submit the fee within such prescribed period, the application shall be regarded as abandoned, unless it is shown to the satisfaction of the Commissioner that the delay in submitting the fee was unavoidable or unintentional.

(4) Filing date.-The filing date of a provisional application shall be the date on which the specification and any required drawing are received in the Patent and Trademark Office.

(5) Abandonment.-The provisional application shall be regarded as abandoned 12 months after the filing date of such application and shall not be subject to revival thereafter.

(6) Other basis for provisional application.-Subject to all the conditions in this subsection and section 119(e) of this title, and as prescribed by the Commissioner, an application for patent filed under subsection (a) may be treated as a provisional application for patent.

(7) No right of priority or benefit of earliest filing date.-A provisional application shall not be entitled to the right of priority of any other application under section 119 or 365(a) of this title or to the benefit of an earlier filing date in the United States under section 120, 121, or 365(c) of this title.

(8) Applicable provisions.-The provisions of this title relating to applications for patent shall apply to provisional applications for patent, except as otherwise provided, and except that provisional applications for patent shall not be subject to sections 115, 131, 135, and 157 of this title.

(July 19, 1952, ch. 950, 66 Stat. 798 ; Aug. 27, 1982, Pub. L. 97–247, §5, 96 Stat. 319 ; Dec. 8, 1994, Pub. L. 103–465, title V, §532(b)(3), 108 Stat. 4986 .)

Historical and Revision Notes

Based on Title 35, U.S.C., 1946 ed., §33 (R.S. 4888, amended (1) Mar. 3, 1915, ch. 94, §1, 38 Stat. 958 ; (2) May 23, 1930, ch. 312, §2, 46 Stat. 376 ).

The corresponding section of existing statute is divided into an introductory section relating to the application generally (this section) and a section on the specification (sec. 112).

The parts of the application are specified and the requirement for signature is placed in this general section so as to insure that only one signature will suffice.

Amendments

1994-Pub. L. 103–465 amended section generally. Prior to amendment, section read as follows: "Application for patent shall be made, or authorized to be made, by the inventor, except as otherwise provided in this title, in writing to the Commissioner. Such application shall include (1) a specification as prescribed by section 112 of this title; (2) a drawing as prescribed by section 113 of this title; and (3) an oath by the applicant as prescribed by section 115 of this title. The application must be accompanied by the fee required by law. The fee and oath may be submitted after the specification and any required drawing are submitted, within such period and under such conditions, including the payment of a surcharge, as may be prescribed by the Commissioner. Upon failure to submit the fee and oath within such prescribed period, the application shall be regarded as abandoned, unless it is shown to the satisfaction of the Commissioner that the delay in submitting the fee and oath was unavoidable. The filing date of an application shall be the date on which the specification and any required drawing are received in the Patent and Trademark Office."

1982-Pub. L. 97–247 inserted ", or authorized to be made," after "shall be made", struck out the colon after "shall include", struck out "signed by the applicant and" after "The application", and inserted provisions that the fee and oath may be submitted after the specification and any required drawing are submitted, within such period and under such conditions, including the payment of a surcharge, as may be prescribed by the Commissioner, that upon failure to submit the fee and oath within such prescribed period, the application shall be regarded as abandoned, unless it is shown to the satisfaction of the Commissioner that the delay in submitting the fee and oath was unavoidable, and that the filing date of an application shall be the date on which the specification and any required drawing are received in the Patent and Trademark Office.

Effective Date of 1994 Amendment

Amendment by Pub. L. 103–465 effective 6 months after Dec. 8, 1994, and applicable to all patent applications filed in the United States on or after that effective date, with provisions relating to earliest filed patent application, see section 534(b)(1), (3) of Pub. L. 103–465, set out as a note under section 154 of this title.

Effective Date of 1982 Amendment

Amendment by Pub. L. 97–247 effective six months after Aug. 27, 1982, see section 17(c) of Pub. L. 97–247, set out as an Effective Date note under section 294 of this title.

Emergency Relief From Postal Situation Affecting Patent, Trademark, and Other Federal Cases

Pub. L. 92–34, June 30, 1971, 85 Stat. 87 , as amended by Pub. L. 93–596, §3, Jan. 2, 1975, 88 Stat. 1949 , provided that:

"Section 1 [Claim and verified statement for benefit of earlier filing date; prior art; evidence of entitled filing date in any proceedings]. (a) A patent or trademark application shall be considered as having been filed in the United States Patent and Trademark Office on the date that it would have been received by the Patent and Trademark Office except for the delay caused by the emergency situation affecting the postal service which began on March 18, 1970, and ended on or about March 30, 1970, if a claim is made for the benefit of an earlier date in accordance with subsections (b) and (c) of this section. Patents issued with earlier filing dates afforded by this section shall not be effective as prior art under subsection 102(e) of title 35 of the United States Code as of such earlier filing dates.

"(b) No patent or trademark application, patent, or trademark registration shall be entitled to an earlier filing date under this section unless a verified statement by the applicant or owner of record claiming the filing date to which the application is believed to be entitled is filed in the Patent and Trademark Office within six months after enactment of this Act [June 30, 1971]. Such statement shall be maintained in the file of the application in the Patent and Trademark Office and shall be referred to in the patent or trademark registration when practicable.

"(c) When a statement filed under subsection (b) of this section appears unreasonable or defective on its face, or when the filing date of the patent or trademark application, patent, or trademark registration is called into question or is material in any inter partes proceeding in the Patent and Trademark Office or any proceeding in the courts, the applicant or owner of such application, patent, or trademark registration may be required to present evidence establishing the filing date to which the application is entitled. The filing date to which the application is entitled shall be determined on the basis of such evidence and any evidence introduced by an opposing party. The evidence shall be presented as directed by the Commissioner of Patents and Trademarks in proceedings in the Patent and Trademark Office or as directed by the courts in proceedings in the courts.

"Sec. 2 [Delayed fees or actions, excusal; relief request; date; applicability to Federal laws; determination of relief]. (a) Except for the filing of a patent or trademark application, if any action is taken or any fee is paid in the United States Patent and Trademark Office later than the end of a time period specified in the statutes set forth in subsection (b) of this section for taking such action or paying such fee, and no provision exists in law for excusing such delay, the delay may be excused if it is determined that it was caused by the emergency situation affecting postal service which began on March 18, 1970 and ended on or about March 30, 1970. Relief under this section must be requested by a verified statement filed in the Patent and Trademark Office by the patent or trademark applicant or owner within six months after enactment of this Act [June 30, 1971].

"(b) This section is applicable to title 35, United States Code, 'Patents'; the Trademark Act of 1946, ch. 540, 60 Stat. 427, as amended [section 1051 et seq. of Title 15, Commerce and Trade]; the Atomic Energy Act of 1954, Pub. L. 83–703, 68 Stat. 919 , as amended [section 2011 et seq. of Title 42, The Public Health and Welfare]; and the National Aeronautics and Space Act, Pub. L. 85–568, 72 Stat. 426 (1958), as amended [section 2451 et seq. of Title 42]. In cases involving the Atomic Energy Act of 1954 [section 2011 et seq. of Title 42] or the National Aeronautics and Space Act [section 2451 et seq. of Title 42], determinations of relief shall be made by a Board of Patent Interferences. In other cases determinations shall be made by the Commissioner of Patents and Trademarks.

"Sec. 3 [Regulations]. The Commissioner of Patents and Trademarks may establish regulations for administering this Act."

Cross References

Fees, see sections 41 and 42 of this title.

Provisions of this chapter applicable to applications for reissue of patents, see section 251 of this title.

Section Referred to in Other Sections

This section is referred to in section 119 of this title.