Question 1

What is the 'infringement test' for dependent claims in patent applications?

Accepted Answer

What is the 'infringement test' for dependent claims in patent applications?

The 'infringement test' is a crucial concept in determining the proper dependency of claims in patent applications. As described in MPEP 608.01(n):

'One test for a proper dependent claim is that the dependent claim must be narrower than the claim(s) from which it depends. In other words, if a dependent claim does not further limit the scope of the claim(s) from which it depends, it is not a proper dependent claim.'

The infringement test states that:

Any subject matter that would infringe the independent claim must also infringe the dependent claim.
If it's possible to infringe the independent claim without infringing the dependent claim, the dependent claim is improper.

This test ensures that dependent claims properly narrow the scope of the claims they depend from, maintaining the hierarchical structure of patent claims.

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Question 2

What is the test for determining if an inventor possessed a generic invention?

Accepted Answer

The test for determining if an inventor possessed a generic invention focuses on whether the completed species provide an adequate basis for inferring generic applicability. According to MPEP 715.03:

"The test is whether the species completed by the inventor prior to the reference date or the date of the activity provided an adequate basis for inferring that the invention has generic applicability."

Furthermore, "It is not necessary for the affidavit evidence to show that the inventor viewed the invention as encompassing more than the species actually made. The test is whether the facts set out in the affidavit are such as would persuade one skilled in the art that the inventor possessed so much of the invention as is shown in the reference."

This test emphasizes the perspective of a person skilled in the art and focuses on the information conveyed by the completed species rather than the inventor's subjective intent.

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Question 3

How does the 'two-way test' apply to genus-species inventions?

Accepted Answer

How does the 'two-way test' apply to genus-species inventions?

The 'two-way test' is a critical concept in evaluating genus-species inventions for patentability. According to MPEP 715.02:

'The disclosure of a species in a reference is not necessarily a constructive reduction to practice of the genus.'

This means that showing a specific example (species) in a prior art reference doesn't automatically disqualify a broader claim (genus) from patentability. The two-way test involves:

Species to Genus: Does the species disclosure in the reference enable one skilled in the art to make the genus?
Genus to Species: Would the genus disclosure in the application enable one skilled in the art to make the species?

If both questions are answered affirmatively, the genus claim may be anticipated by the species disclosure. However, if either answer is negative, the genus claim may still be patentable over the species disclosure.

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Question 4

When can a patent examiner question test results in a patent application?

Accepted Answer

A patent examiner can question test results in a patent application when there is a reasonable basis for doing so. The Manual of Patent Examining Procedure (MPEP) 707.07(l) states:

The results of the tests and examples should not normally be questioned by the examiner unless there is reasonable basis for questioning the results.

If an examiner has a valid reason to doubt the accuracy or relevance of the provided test results, they may challenge them. However, this should not be done arbitrarily and must be based on a sound rationale.

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