Examiner Interview Notes

This brief note is not legal advice and is for educational purposes only.
When you have an interview with an examiner, an interview summary should be produced and made part of the official record, the Image File Wrapper (IFW). In this way communications are properly on the record. Often the examiner will file an interview summary using form PTOL-413. At the end of such a communication you might see this:

Attached hereto are communications submitted for discussion purposes only, as well as all other relevant
communications pursuant to 44 USC 3101, 44 USC 3301, 37 CFR 1.133, 37 CFR 1.2, and MPEP sec. 713.04

Okay so here’s what each of these sections means briefly.

44 USC 3101 – Records management by agency heads; general duties. “The head of each Federal agency shall make and preserve records containing adequate and proper documentation of the organization, functions, policies, decisions, procedures, and essential transactions of the agency and designed to furnish the information necessary to protect the legal and financial rights of the Government and of persons directly affected by the agency’s activities.”

44 USC 3301 – Definition of records. Basically all written material, photos, and machine readable materials, etc. made or received by the government.

37 CFR 1.133 – Interviews. Basically USPTO office policy for interviews (a) (1) on office premises and hours (2) no interviews before first office action generally, and (3) interviews may need to be scheduled in advance. And “(b) In every instance where reconsideration is requested in view of an interview with an examiner, a complete written statement of the reasons presented at the interview as warranting favorable action must be filed by the applicant. An interview does not remove the necessity for reply to Office actions as specified in §§ 1.111 and 1.135.”

37 CFR 1.2 – Business to be transacted in writing. “All business with the Patent and Trademark Office should be transacted in writing. The personal attendance of applicants or their attorneys or agents at the Patent and Trademark Office is unnecessary. The action of the Patent and Trademark Office will be based exclusively on the written record in the Office. No attention will be paid to any alleged oral promise, stipulation, or understanding in relation to which there is disagreement or doubt.”

MPEP sec. 713.04 – Substance of Interview Must Be Made of Record [R-07.2015]. “A complete written statement as to the substance of any in-person, video conference, electronic mail, telephone interview, or electronic message system discussion with regard to the merits of an application must be made of record in the application, whether or not an agreement with the examiner was reached at the interview. The requirement may be satisfied by submitting a transcript generated during an electronic mail or message exchange.”