Q) Incorporation by Reference (4.03.40p)

by admin on April 8, 2010 · 4 comments

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Recent test takers report question #40 from the October 2003 (pm) exam is in the Patent Bar database of tested questions.


40. Which of the following is not a proper incorporation by reference in an application prior to allowance according to the USPTO rules and the procedures set forth in the MPEP?
(A) Incorporating material necessary to describe the best mode of the claimed invention by reference to a commonly owned, abandoned U.S. application that is less than 20 years old.
(B) Incorporating non-essential material by reference to a prior filed, commonly owned pending U.S. application.
(C) Incorporating material that is necessary to provide an enabling disclosure of the claimed invention by reference to a U.S. patent.


ANSWER: (D) is the correct answer. See MPEP ยง 608.01(p). (A) is incorrect because abandoned applications less than 20 years old can be incorporated by reference to the same extent as copending applications. (B) is incorrect because non-essential material may be incorporated by reference to patents or applications published by the United States. (C) is incorrect because material necessary to provide an enabling disclosure is essential material, which may be incorporated by reference to a U.S. patent. (E) is incorrect because non-essential material may be incorporated by reference to a U.S. patent which incorporates essential material.
(D) Incorporating non-essential material by reference to a hyperlink.
(E) Incorporating material indicating the background of the invention by reference to a U.S. patent which incorporates essential material.

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