Editing MPEP 720

<noinclude>{{MPEP Section|719|700|724}}</noinclude>

==[[MPEP 720|720 Public Use Proceedings]]== 

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37 CFR 1.292. Public use proceedings.

(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.

Public use proceedings are provided for in 37 CFR 
1.292. The institution of public use proceedings is discretionary 
with the Director of the USPTO. This section 
is intended to provide guidance when a question 
concerning public use proceedings arises.

Any member of the public other than the applicant, 
including private persons, corporate entities, and government 
agencies, may file a petition under 37 CFR 
1.292. A petition may be filed by an attorney or other 
representative on behalf of an unnamed principal 
since 37 CFR 1.292 does not require that the principal 
be identified. A petition and fee (37 CFR 1.17(j)) are 
required to initiate consideration of whether to institute 
a public use proceeding. The petitioner ordinarily 
has information concerning a pending application 
which claims, in whole or in part, subject matter that 
the petitioner alleges was in “public use” or “on sale” 
in this country more than one year prior to the effective 
United States filing date of the pending application 
(see 35 U.S.C. 119 and 120). He or she thus 
asserts that a statutory bar (35 U.S.C. 102(b) alone or 
in combination with 35 U.S.C. 103) exists which prohibits 
the patenting of the subject matter of the application.


When public use petitions and accompanying 
papers are submitted they, or a notice in lieu thereof, 
will be entered in the application file if the petition is:

(A)accompanied by the fee set forth in 37 CFR 
1.17(j); 

(B)served on the applicant in accordance with 
37 
CFR 1.248, or filed with the Office in duplicate in 
the event service is not possible; and 

(C)submitted prior to the date the application 
was published or the mailing of a notice of allowance 
under 37 CFR 1.311, whichever occurs first. 

Duplicate copies should be submitted only when, 
after diligent effort, it has not been possible for petitioner 
to serve a copy of the petition on the applicant, 
or his or her attorney or agent in accordance with 
37 
CFR 1.248 in which case the Office of Patent 
Legal Administration of the Office of the Deputy 
Commissioner for Patent Examination Policy will 
attempt to get the duplicate copy to the applicant, or 
his or her attorney or agent.

Notice of a petition for a public use proceeding will 
be entered in the file in lieu of the petition itself when 
the petition and the accompanying papers are too 
bulky to accompany the file. Any public use papers 




 

not physically entered in the file will be publicly 
available whenever the application file wrapper is 
available. For Image File Wrapper (IFW) processing, 
see IFW Manual section 3.3.

There are two types of public use proceedings: ex 
parte and inter partes. It is important to understand 
the difference. In the ex parte situation, the 
petitioner 
is not entitled, as a matter of right, to 
inspect the pending application. Thus, he or she 
stands in no better position than any other member of 
the public regarding access to the pending application. 
In the inter partes situation, the pending application is 
a reissue application. In the inter partes situation, the 
petitioner is privy to the contents of the pending application 
(37 CFR 41.109). Thus, as pointed out 
below, the petitioner in the inter partes situation participates 
in the public use proceedings to a greater 
degree than in the ex parte situation. A petitioner who 
was once involved in a terminated interference with a 
pending application is no longer privy to the application 
contents and will accordingly be treated as an ex 
parte petitioner. It should be noted that petitions filed 
on and after February 11, 1985 will not be allowed in 
accordance with 37 CFR 1.292(c) unless the petition 
arises out of an interference declared prior to February 
11, 1985 or the interference was declared after February 
11, 1985 but arose from an interference declared 
prior to that date.

Since February 11, 1985, a petition for institution 
of 
public use proceedings cannot be filed by a party 
to 
an 
interference as to an application involved in the 
interference. Public use issues can only be raised by a 
 motion under 37 CFR 41.121. However, if the 
issue of public use arises out of an interference 
declared prior to February 11, 1985, the petition may 
be filed by a party to the interference as to an application 
involved in the interference.

There may be cases where a public use petition has 
been filed in an application which has been restricted 
or is subject to a proper restriction requirement. If the 
petition alleges that subject matter covering both 
elected claims and nonelected claims is a statutory 
bar, only that part of the petition drawn to subject matter 
of the elected claims will be considered. However, 
if a public use proceeding is ultimately instituted, it 
will not necessarily be limited to the subject matter of 
the elected claims but may include the nonelected 
subject matter. Any evidence adduced on the nonelected 
subject matter may be used in any subsequently-
filed application claiming subject matter 
without the requirement of a new fee (37 CFR 
1.17(j)). The petitioner will not be heard regarding the 
appropriateness of any restriction requirement.

A petition under 37 CFR 1.292 must be submitted 
in writing, must specifically identify the application to 
which the petition is directed by application number 
or serial number and filing date, and should include a 
listing of all affidavits or declarations and exhibits 
relied on. The petition must contain a sufficient 
description of the subject matter that the petitioner 
alleges was in “public use” or “on sale,” including any 
necessary photographs, drawings, diagrams, exhibits, 
or flowcharts, to enable the examiner to compare the 
claimed subject matter to the subject matter alleged to 
have been in “public use” or “on sale.” In addition, 
the petition and any accompanying papers must either 
(A) reflect that a copy of the same has been served 
upon the applicant or upon the applicant’s attorney or 
agent of record; or (B) be filed with the Office in 
duplicate in the event service is not possible.

It is important that any petition in a pending application 
specifically identify the application to which 
the petition is directed with the identification being as 
complete as possible. The following information, if 
known, should be placed on the petition:

(A)Name of Applicant(s).

(B)Application number.

(C)Confirmation number.

(D)Filing date of application.

(E)Title of invention.

(F)Technology Center art unit number.

(G)Name of examiner to whom the application is 
assigned.

(H)Current status and location of application.

(I)The word “ATTENTION:” followed by the 
area of the Office to which the petition is directed as 
set forth below.

In addition, to the above information, the petition 
itself should be clearly identified as a “PETITION 
UNDER 37 CFR 1.292.” If the petition is accompanied 
by exhibits or other attachments, these should 
also contain identifying information thereon in order 
to prevent them from becoming inadvertently separated 
and lost.




 

Any petition under 37 CFR 1.292 can be submitted 
by mail to the Commissioner for Patents, P.O. Box 
1450, Alexandria, VA 22313-1450, and should be 
directed to the attention of the director of the particular 
Technology Center (TC) in which the application 
is pending. If the petitioner is unable to specifically 
identify the application to which the petition is 
directed, but, nevertheless, believes such an application 
to be pending, the petition should be directed to 
the attention of the Office of Patent Legal Administration 
of the Office of the Deputy Commissioner for 
Patent Examination Policy or to “Mail Stop Petition,” 
along with as much identifying data for the application 
as possible.

Where a petition is directed to a reissue application 
for a patent which is involved in litigation, the outside 
envelope and the top right-hand portion of the petition 
should be marked with the words “REISSUE LITIGATION.” 
The notations preferably should be written 
in a bright color with a felt point marker. Any “REISSUE 
LITIGATION” petition mailed to the Office 
should be so marked and mailed to “Mail Stop Petition.” 
However, in view of the urgent nature of most 
“REISSUE LITIGATION” petitions, petitioners may 
wish to hand-carry the petition in order to ensure 
prompt receipt and to avoid any unnecessary delays. 
These hand-carried petitions and replies may only be 
delivered to the Customer Window located at:

U.S. Patent and Trademark Office

Customer Service Window

Randolph Building

401 Dulany Street

Alexandria, VA 22314

Every effort should be made by a petitioner to 
effect service of the petition upon the attorney or 
agent of record or upon the applicant if no attorney or 
agent is of record. Of course, the copy served upon 
applicant or upon applicant’s attorney or agent should 
be a complete copy including a copy of each photograph, 
drawing, diagram, exhibit, flowchart, or other 
document relied on. The petition filed in the Office 
should reflect, by an appropriate “Certificate of Service,” 
that service has been made as provided in 
37 
CFR 1.248. Only in those instances where service 
is not possible should the petition be filed in duplicate 
in order that the Office can attempt service. In addition, 
all other papers filed by the petitioner relating to 
the petition or subsequent public use proceeding must 
be served in accordance with 37 CFR 1.248.

===720.01Preliminary Handling [R-3]===

A petition filed under 37 CFR 1.292 should be forwarded 
to the Office of Patent Legal Administration 
(OPLA) of the Office of the Deputy Commissioner 
for Patent Examination Policy. A member of the 
OPLA staff will ascertain whether the formal requirements 
of 37 
CFR 1.292 have been fulfilled. In particular, 
the petition will be reviewed to see whether the 
petition has been filed prior to the earliest of the date 
the application was published or the mailing of a 
notice of allowance under 37 CFR 1.311, if the 
alleged use or sale occurred in this country more than 
1 year before the effective filing date of the application, 
whether the petition contains affidavits or declarations 
and exhibits to establish the facts alleged, 
whether the papers have been filed in duplicate, or 
one copy has been served on applicant and whether 
the required fee has been tendered. The application 
file is ordered and its status ascertained so that appropriate 
action may be taken. 

A petition under 37 CFR 1.292 must be “submitted 
prior to the date the application was published or the 
mailing of a notice of allowance under 37 CFR 1.311, 
whichever occurs first.” As a practical matter, any 
petition should be submitted as soon as possible after 
the petitioner becomes aware of the existence of the 
application to which the petition is to be directed. By 
submitting a petition early in the examination process, 
i.e., before the Office acts on the application if possible, 
the petitioner ensures that the petition will receive 
maximum consideration and will be of the most benefit 
to the Office in its examination of the application.

Since a petition under 37 CFR 1.292 cannot be considered 
subsequent to issuance of the application as a 
patent or abandonment of the application, the petition 
will not be considered if the application is not pending 
when the petition and application are provided to the 
member of the OPLA staff (i.e., that the application 
was pending at the time the petition was filed would 
be immaterial to its ultimate consideration). A petition 
submitted prior to the earliest of the date the application 
was published or the mailing of a notice of allowance 
under 37 
CFR 1.311, but not provided to the 
member of the OPLA staff with the application file 
prior to issuance or abandonment of the application, 




 

will be entered in the application file, but will be dismissed 
as moot. A petition filed after final rejection 
will be considered if the application has not been published 
and is still pending when the petition and application 
are provided to the member of the OPLA staff. 
However, prosecution will not ordinarily be reopened 
after final rejection if the subject matter alleged in the 
petition to have been in “public use” or “on sale” is 
merely cumulative of the prior art cited in the final 
rejection. If a petition is filed after the date the application 
was published or the mailing of a notice of 
allowance under 37 CFR 1.311, it will be dismissed as 
untimely. 

A petition with regard to a reissue application 
should be filed within the 2-month period following 
announcement of the filing of the reissue application 
in the Official Gazette. If, for some reason, the petition 
cannot be filed within the 2-month period provided 
by 37 CFR 1.176, the petition can be submitted 
at a later time, but petitioner must be aware that reissue 
applications are “special” and a later filed petition 
may be received after action by the examiner. 
Any 
request by a petitioner in a reissue application 
for 
an 
extension of the 2-month period following 
the 
announcement in the Official Gazette will be considered 
only if filed in the form of a petition under 
37 
CFR 1.182 and accompanied by the petition fee set 
forth in 37 CFR 1.17(f). The petition must explain 
why the additional time is necessary and the nature of 
the allegations to be made in the petition. A copy of 
such petition must be served upon applicant in accordance 
with 37 CFR 1.248. The petition should be 
directed to the appropriate Technology Center (TC). 
Any such petition will be critically reviewed as to 
demonstrated need before being granted since the 
delay of examination of a reissue application of 
another party is being requested. Accordingly, the 
requests should be made only where necessary, for the 
minimum period required, and with a justification 
establishing the necessity for the extension.

If the petition is a “REISSUE LITIGATION” petition, 
it is particularly important that it be filed early if 
petitioner wishes it considered prior to the first Office 
action on the application. Petitioners should be aware 
that the Office will entertain petitions under 37 CFR 
1.183, when accompanied by the petition fee set forth 
in 37 CFR 1.17(f), to waive the 2-month delay 
period of 37 CFR 1.176 in appropriate circumstances. 
Accordingly, petitioners in reissue applications cannot 
automatically assume that the full 2-month delay 
period of 37 CFR 1.176 will always be available.

In those ex parte situations where a petitioner cannot 
identify the pending application by application 
number, the petition papers will be forwarded to the 
appropriate TC Director for an identification search. 
Once the application file(s) is located, it should be 
forwarded to the OPLA.

If the petition filed in the Office does not indicate 
service on applicant or applicant’s attorney or agent, 
and is not filed in duplicate, then the Office will 
undertake to determine whether or not service has 
been made by contacting applicant or applicant’s 
attorney or agent by telephone or in writing to ascertain 
if service has been made. If service has not been 
made and no duplicate has been filed, then the Office 
may request petitioner to file such a duplicate before 
the petition is referred to the examiner. Alternatively, 
if the petition involves only a few pages, the Office 
may, in its sole discretion, elect to reproduce the petition 
rather than delay referring it to the examiner. If 
duplicate petition papers are mailed to applicant or 
applicant’s attorney or agent by the Office, the application 
file should reflect that fact, either by a letter 
transmitting the petition or, if no transmittal letter is 
used, simply by an appropriate notation in the “Contents” 
section of the application file wrapper. For 
Image File Wrapper (IFW) processing, see IFW Manual 
section 3.4.

If the petition is not submitted prior to the earliest 
of the date the application was published or the mailing 
of a notice of allowance under 37 CFR 1.311, it 
should not be entered in the application file. The 
applicant should be notified that the petition is 
untimely and that it is not being entered in the application 
file. The handling of the petition will vary 
depending on the particular following situation.

(A)Service Of Copy Included

Where the petition includes an indication of service 
of copy on the applicant, the original petition 
should be discarded.

(B) Service Of Copy Not Included

Where the petition does not include an indication 
of service and a duplicate copy of the petition is or is 
not present, the duplicate copy (if present) should be 
discarded and the original petition should be sent to 
the applicant along with the notification of nonentry.




 

===720.02Examiner Determination of Prima Facie Showing [R-2]===

Once the Office of Patent Legal Administration 
(OPLA) staff member has determined that the petition 
meets the formal requirements of 37 CFR 1.292, and 
the application’s status warrants consideration of the 
petition, he or she will prepare a letter  forwarding 
the petition and the application file to the examiner 
for determination of whether a prima facie case of 
public use or sale in this country of the claimed subject 
matter is established by the petition. Any other 
papers that have been filed by the parties involved, 
such as a reply by the applicant or additional submissions 
by the petitioner, will also be forwarded to the 
examiner. Whether additional papers are accepted is 
within the discretion of the OPLA staff member. 
However, protracted paper filing is discouraged since 
the parties should endeavor to present their best case 
as to the prima facie showing at the earliest possible 
time. No oral hearings or interviews will be granted at 
this stage, and the examiner is cautioned not to answer 
any inquiries by the petitioner or applicant.

A prima facie case is established by the petition if 
the examiner finds that the facts asserted in the affidavit(
s) or declaration(s), as supported by the exhibits, if 
later proved true by testimony taken in the public use 
proceeding, would result in a statutory bar to the 
claims under 35 U.S.C. 102(b) alone or in combination 
with 35 U.S.C. 103. See MPEP § 2133.03 et seq.

To make this determination, the examiner must 
identify exactly what was in public use or on sale, 
whether it was in use or on sale in this country more 
than 1 year before the effective filing date, and 
whether the pending claims “read” on or are obvious 
over what has been shown to be in public use or on 
sale. On this last point, the examiner should compare 
all pending claims with the matter alleged to have 
been in use or on sale, not just the claims identified by 
petitioner.

In situations where the petition alleges only that the 
claims are obvious over subject matter asserted to be 
in public use or on sale, the petition should include 
prior art or other information on which it relies and 
explain how the prior art or other information in combination 
with the subject matter asserted to be in public 
use or on sale renders the claims obvious. The 
examiner is not expected to make a search of the prior 
art in evaluating the petition. If, however, the examiner 
determines that a prima facie case of anticipation 
under 35 U.S.C. 102(b) has not been established but, 
at the time of evaluating the petition, the examiner is 
aware of prior art or other information which, in his or 
her opinion, renders the claims obvious over the subject 
matter asserted to be in public use or on sale the 
examiner may determine that a prima facie case is 
made out, even if the petition alleged only that the 
claims were anticipated under 35 U.S.C. 102(b).

After having made his/her determination, the examiner 
will forward a memorandum to the OPLA 
staff member, stating his or her findings and his or 
her decision as to whether a prima facie case has been 
established. The findings should include a summary 
of the alleged facts, a comparison of at least one claim 
with the device alleged to be in public use or on sale, 
and any other pertinent facts which will aid the 
OPLA staff member in conducting the preliminary 
hearing. The report should be prepared in triplicate 
and addressed to the OPLA staff member.

===720.03Preliminary Hearing [R-2]===

Where the examiner concludes that a prima facie 
showing has not been established, both the petitioner 
and the applicant are so notified by the Office of the 
Deputy Commissioner for Patent Examination Policy 
and the application proceedings are resumed without 
giving the parties an opportunity to be heard on the 
correctness of the examiner’s decision. Where the 
examiner concludes that a prima facie case has been 
established, the Director of the USPTO may hold 
a preliminary hearing. In such case, the parties will be 
notified by letter of the examiner’s conclusion and of 
the time and date of the hearing. In ex parte cases, 
whether or not the examiner has concluded that a 
prima facie showing has been established, no copy of 
the examiner’s memorandum to the Office of 
Patent Legal Administration (OPLA) staff member
will be forwarded to the petitioner. However, in such 
cases where the petition covers restrictable subject 
matter and it is evident that petitioner is not aware of a 
restriction requirement which has been or may be 
made, petitioner will be informed that the examiner’s 
conclusion is limited to elected subject matter. While 
not so specifically captioned, the notification of 
this 
hearing amounts to an order to show cause why 
a 
public use proceeding should not be held. No new 




 

evidence is to be introduced or discussed at this hearing. 
The format of the hearing is established by the 
member of the OPLA staff. The examiner may 
attend as an observer only.

Where the hearing is held in the ex parte situation, 
great care will be taken to avoid discussion of any 
matters of the application file which are not already of 
knowledge to petitioner. Of course, applicant may of 
his or her own action or consent notify the petitioner 
of the nature of his or her claims or other related matters.


After the hearing is concluded, the OPLA staff 
member will decide whether public use proceedings 
are to be initiated, and he/she will send appropriate 
notice to the parties.

===720.04Public Use Proceeding Testimony===

When the Office of Patent Legal Administration 
(OPLA) staff member decides to institute public use 
proceedings, the application is referred to the examiner 
who will conduct all further proceedings. The 
fact that the affidavits or declarations and exhibits 
presented with the petition for institution of the public 
use proceedings have been held to make out a prima 
facie case does not mean that the statutory bar has 
been conclusively established. The statutory bar can 
only be established by testimony taken in accordance 
with normal rules of evidence, including the right of 
cross-examination. The affidavits or declarations are 
not to be considered part of the testimony and in no 
case can they be used as evidence on behalf of the 
party submitting them unless the affidavits or declarations 
are submitted as a part of the petitioner’s testimony.


The procedure for taking testimony in a public use 
proceeding is similar to that for taking testimony in an 
interference. Normally, no representative of the Director 
of the USPTO need be present at the taking of the 
testimony. Note that 37 
CFR 41.157(a) limits 
noncompelled direct testimony to affidavits. 

The examiner will set a schedule of times for taking 
testimony and for filing the record and briefs on the 
basis of the following:

I.SCHEDULE FOR TESTIMONY

(A)Testimony for petitioner to close . . . . . . . . 
[specify a date, e.g., January 10, 1997, which is 
approximately 60 days after the letter]

(B)Time for the applicant to file objections to 
admissibility of petitioner’s evidence to close . . . . . . . 
[specify a date which is approximately 20 days after 
date (A)]

(C)Time for the petitioner to file supplemental 
evidence to overcome objections to close 20 days 
from above date, i.e., . . . . . . . . . . . . . . . . . . . . . . . . . . 
. [specify a date which is exactly 20 days after date 
(B), unless the date is a Saturday, Sunday or federal 
holiday, in which case use the next business day]

(D)Time for the applicant to request cross-examination 
of the petitioner’s affiants to close . . . . . . . . . 
[specify a date which is approximately 20 days after 
date (C)]

(E)Time for cross-examination of the petitioner’s 
affiants to close . . . . . . . . . . . . . . . . . . . . . [specify a 
date which is approximately 30 days after date (D)]

(F)Rebuttal testimony by applicant to close . . . . . 
[specify a date which is approximately 20 days after 
date (E)]

II.SCHEDULE FOR FILING AND SERVING 
COPIES OF RECORD AND BRIEFS

One copy of each of the petitioner’s and the applicant’s 
record and exhibits (see 37 CFR 41.154 and 
41.157) is due .
 
. . . [specify a date which is approximately 
30 days after date (F)]

Petitioner’s brief is due . . . . . . . . . . . . . . . . . [specify 
a date which is approximately 30 days after previous 
date]

Applicant’s brief is due . . . . . . . . . . . . . . . . [specify 
a date which is approximately 20 days after previous 
date]

Applicant and petitioner may agree on a different 
schedule for testimony, records, and briefs, provided 
the last brief is due no later than the date set forth 
above and provided a copy of the new schedule is 
filed by either applicant or petitioner. No extension of 
time will be permitted under 37 
CFR 1.136(a). Any 
petition to extend the time for filing the last brief must 
be filed under 37 CFR 1.136(b).

A certified transcript of a deposition must be filed 
in the U.S. Patent and Trademark Office within one 




 

month after the date of deposition. 37 CFR 
41.157.

All papers in the public use proceeding shall be 
served in accordance with 37 CFR 1.248.

It is understood from the above scheduling of times 
that a given time period begins with the close of the 
previous period, and that the completion of testimony 
or the filing of the record or a brief before the close of 
the corresponding period does not change its closing 
date. To avoid confusion, the examiner should indicate 
specific dates for the close of each period.

In ex parte cases and in inter partes cases where the 
pending application is a reissue, an oral hearing is 
ordinarily not held.

In all public use proceedings, whether the ultimate 
issue is anticipation under 35 U.S.C. 102(b) or obviousness 
over 35 U.S.C. 103, testimony will be limited 
to the issues of public use or on sale. No testimony 
will be received on whether the claimed subject matter 
would have been obvious over subject matter 
asserted to be in public use or on sale.

===720.05Final Decision [R-2]===

The final decision of the examiner should be “analogous 
to that rendered by the [Board of 
Patent 
Appeals and Interferences] in an interference 
proceeding, analyzing the testimony” and stating conclusions. 
In re Townsend, 1913 C.D. 55, 188 O.G. 513 
(Comm’r Pat. 1913). In reaching his or her decision, 
the examiner is not bound by the prior finding that a 
prima facie case has been established.

If the examiner concludes that a public use or sale 
bar exists, he or she will enter a rejection to that effect 
in the application file, predicating that rejection on the 
evidence considered and the findings and decision 
reached in the public use proceeding. Even if a rejection 
is not made, the examiner’s written action should 
reflect that the evidence of 35 U.S.C. 102(b) activity 
has in fact been considered. Likewise, if the examiner 
concludes that a prima facie case (A) has not been 
established, or (B) has been established and rebutted 
(MPEP § 2133.03(e) et seq.) then the examiner’s written 
action should so indicate. Strict adherence to this 
format should cause the rationale employed by the 
examiner in the written action to be self-evident. In 
this regard, the use of reasons for allowance pursuant 
to 37 CFR 1.104(e) may also be appropriate. See 
MPEP § 1302.14. In ex parte cases where the petitioner 
does not have access to the file, no copy of the 
examiner’s action is mailed to the petitioner by the 
Office.

There is no review from the final decision of the 
examiner in the public use proceedings. A petition 
under 37 CFR 1.181, requesting that the Director of 
the USPTO exercise his or her supervisory authority 
and vacate the examiner’s decision, will not be entertained 
except where there is a showing of clear error. 
See Ex parte Hartley, 1908 C.D. 224, 136 O.G. 1767 
(Comm’r Pat. 1908). Once the application returns to 
its ex parte status, appellate review under 35 U.S.C. 
134 and 141-145 may be had of any adverse decision 
rejecting claim(s), as a result of the examiner’s decisions 
as to public use or sale.