(a) When a petition for the institution of public use proceedings, supported by affidavits or declarations is found, on reference to the examiner, to make a prima facie showing that the invention claimed in an application believed to be on file had been in public use or on sale more than one year before the filing of the application, a hearing may be had before the Director to determine whether a public use proceeding should be instituted. If instituted, the Director may designate an appropriate official to conduct the public use proceeding, including the setting of times for taking testimony, which shall be taken as provided by part 41, subpart D, of this title. The petitioner will be heard in the proceedings but after decision therein will not be heard further in the prosecution of the application for patent.
(b) The petition and accompanying papers, or a notice that such a petition has been filed, shall be entered in the application file if:
(1) The petition is accompanied by the fee set forth in § 1.17(j) ;
(2) The petition is served on the applicant in accordance with § 1.248, or filed with the Office in duplicate in the event service is not possible; and
(3) The petition is submitted prior to the date the application was published or the mailing of a notice of allowance under § 1.311, whichever occurs first.
(c) A petition for institution of public use proceedings shall not be filed by a party to an interference as to an application involved in the interference. Public use and on sale issues in an interference shall be raised by a motion under § 41.121(a)(1) of this title.
(35 U.S.C. 6; 15 U.S.C. 1113, 1123)
[42 FR 5595, Jan. 28, 1977, as amended at 49 FR 48454, Dec. 12, 1984; 61 FR 42807, Aug. 19, 1996; 65 FR 57060, Sept. 20, 2000; 69 FR 50000, Aug. 12, 2004]
Title 37 published on 2012-07-01
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