Question #19 from the April 2003 (AM) patent bar exam is reported by exam takers as a question in the current exam database.
ANSWER: (B) is the most correct answer. 37 CFR § 1.133; MPEP § 713.02. As stated in MPEP § 713.02, “[a] request for an interview prior to the first Office action is ordinarily granted in continuing or substitute applications. A request for an interview in all other applications before the first action is untimely and will not be acknowledged if written, or granted if oral. 37 CFR 1.133(a).” (A) is incorrect because interview will not be permitted off Office premises without the authority of the Commissioner. 37 CFR § 1.133(a)(1). (C) is incorrect because an interview for the discussion of the patentability of a pending application will not occur before the first Office action, unless the application is a continuing or substitute application. 37 CFR § 1.133(a)(2). (D) is incorrect because (A) and (C) are incorrect. (E) is incorrect because (B) is correct.
I think (C) will now qualify as a correct answer in light of MPEP Rev. 8.
The examiner can grant an interview in a noncontinuing or nonsubstitute application if the examiner determines that such an interview would advance prosecution of the application.
MPEP § 713.02 now states:
A request for an interview prior to the first Office action is ordinarily granted in continuing or substitute applications. In all other applications, an interview
before the first Office action **>is encouraged where< the examiner determines that such an interview would advance prosecution of the application.
Thank you Zeph!
C is still not as good as B. The Examiner can still deny an interview before the 1st OA if he determines that such an interview would NOT advance prosecution of the application.
The MPEP says the request is “ordinarily granted” in B’s circumstances, where the call of the question asks for a situation where a request “WILL be granted.” E is the only one that logically works given the discretion the office has on this matter.
Don’t over-think this question. B is the only answer choice that fully complies with MPEP 713.02. Know where to look up the questions, apply the law to the question’s fact pattern, and select the best answer.
I don’t care what anyone says here, in view of the COMPLETELY REVISED section (e.g., the pertinent section of the MPEP went from “untimely” to “encouraged), the answer here is (D).
With that said, it is extremely unlikely to get a question like this. Also, most of us would have chosen the correct answer, (B), if we were using the correct MPEP, so kudos to everyone.
Which of the following requests WILL be granted in accordance with proper USPTO rules and procedure
Always granted by rule. Sometimes granted by rule are different.