Test Questions

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The next several questions relate to the following references, hypothetically identified by you in a prior art search for possible forwarding to USPTO in connection with the Rocking Chair Patent Application.

FILED: 6/08/2005 (P2F) AND PUBLISHED: 12/08/2006 (P2P)
(A CONTINUATION OF AN EARLIER APPLICATION FILED 2/17/2004 (P1F), HAVING THE SAME PREFERRED EMBODIMENT AND HAVING BEEN PUBLISHED 8/17/2005 (P1P))

6. Which of the above would be appropriate to forward to the USPTO and very likely to be considered in connection with the claims of the Rocking Chair Patent Application:


1. All of the above references
2. None of the above references
3. Only references v (R5) and vi (R6)
4. Only reference v (R6)
5. Only references iv (R4), v (R5), and vii (R7I & R7P)
6. All references except i (R1)
7. All references except i (R1) and vi (R6)

[ Show Answer ]
(e) - only references iv (R4), v (R5), and vii (R7I & R7P). In this case, the critical date is 2/17/2003 - one year before the priority date of the parent application (which was filed 2/17/2004). All publications having dates earlier than that critical date, and disclosing relevant details of the claimed invention, are certain to be considered material to patentability by the USPTO. References v (R5), and vii (R7I & R7P) fit that description. In addition, reference iv (R4) is likely to be considered material to patentability - though it is subsequent to the critical date, it nevertheless has a date of publication prior to the filing of the parent application and so will defeat the patentability of the rocking chair unless the applicant can establish an earlier date of invention by "swearing behind" the reference. Reference vi (R6), though dated early enough, is probably not sufficiently accessible to the public to be considered a printed publication and so legitimate prior art. However, though it likely will not be forwarded to the PTO, a reviewer might want to identify that reference to peers considering the patentability of the rocking chair application in case another reviewer might be triggered by it to remember that same publication having been published in a more generally accessible medium. (Note that it is irrelevant that the patent described in vii does not claim the rocking chair. It serves as prior art because of the description independent of that patent's claims.)


7. Identify the reference listed above best likely to invalidate some or all of the claims of the Rocking Chair Patent Application(if any):


1. None is likely to invalidate
2. References iv (R4), v (R5), and vii (R7I & R7P) are best likely to invalidate
3. References v (R5) and vii (R7I & R7P) are best likely to invalidate

[ Show Answer ]
(iii), references v (R5) and vii (R7I & R7P) are best likely to invalidate. Both were published prior to the critical date, and disclose features material to patentability. Reference iv (R4), though published prior to filing the parent application, is not an absolute bar to patentability since the applicant for the Rocking Chair Patent Application has the potential to dispose of that reference by establishing that the date of invention was prior to the date of publication for that reference (i.e., by "swearing behind" the reference.)