35 U.S.C. § 123 — Micro entity defined

Page 58 TITLE 35—PATENTS § 123 Editorial Notes AMENDMENTS 2012—Subsec. (b)(2)(B)(iii). Pub. L. 112–211 struck out ‘‘, unless it is shown to the satisfaction of the Director that the delay in submitting the notice was uninten- tional’’ after ‘‘regarded as abandoned’’. 2011—Subsec. (b)(2)(A)(ii). Pub. L. 112–29, § 20(j), struck out ‘‘of this title’’ after ‘‘181’’. Subsec. (b)(2)(A)(iii). Pub. L. 112–29, § 20(j), struck out ‘‘of this title’’ after ‘‘111(b)’’. Subsec. (b)(2)(A)(iv). Pub. L. 112–29, § 20(j), struck out ‘‘of this title’’ after ‘‘16’’. Subsec. (d). Pub. L. 112–29, § 20(j), struck out ‘‘of this title’’ after ‘‘17’’. Subsec. (e). Pub. L. 112–29, § 8(a), added subsec. (e). 1999—Pub. L. 106–113 amended section catchline and text generally. Prior to amendment, text read as fol- lows: ‘‘Applications for patents shall be kept in con- fidence by the Patent and Trademark Office and no in- formation concerning the same given without author- ity of the applicant or owner unless necessary to carry out the provisions of any Act of Congress or in such special circumstances as may be determined by the Commissioner.’’ 1975—Pub. L. 93–596 substituted ‘‘Patent and Trade- mark Office’’ for ‘‘Patent Office’’. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2012 AMENDMENT Amendment by Pub. L. 112–211 effective on the date that is 1 year after Dec. 18, 2012, applicable to patents issued before, on, or after that effective date and patent applications pending on or filed after that effective date, and not effective with respect to patents in litiga- tion commenced before that effective date, see section 203 of Pub. L. 112–211, set out as an Effective Date note under section 27 of this title. EFFECTIVE DATE OF 2011 AMENDMENT Pub. L. 112–29, § 8(b), Sept. 16, 2011, 125 Stat. 316, pro- vided that: ‘‘The amendments made by this section [amending this section] shall take effect upon the expi- ration of the 1-year period beginning on the date of the enactment of this Act [Sept. 16, 2011] and shall apply to any patent application filed before, on, or after that ef- fective date.’’ Amendment by section 20(j) of Pub. L. 112–29 effective upon the expiration of the 1-year period beginning on Sept. 16, 2011, and applicable to proceedings commenced on or after that effective date, see section 20(l) of Pub. L. 112–29, set out as a note under section 2 of this title. EFFECTIVE DATE OF 1999 AMENDMENT Amendment by of Pub. L. 106–113 effective Nov. 29, 2000, and applicable only to applications (including international applications designating the United States) filed on or after that date, and applications published pursuant to subsec. (b) of this section result- ing from an international application filed before Nov. 29, 2000 not to be effective as prior art as of the filing date of the international application, but to be effec- tive as prior art in accordance with section 102(e) of this title in effect on Nov. 28, 2000, see section 1000(a)(9) [title IV, § 4508] of Pub. L. 106–113, as amended, set out as a note under section 10 of this title. EFFECTIVE DATE OF 1975 AMENDMENT Amendment by Pub. L. 93–596 effective Jan. 2, 1975, see section 4 of Pub. L. 93–596, set out as a note under section 1111 of Title 15, Commerce and Trade. STUDY OF APPLICANTS FILING ONLY IN UNITED STATES Pub. L. 106–113, div. B, § 1000(a)(9) [title IV, § 4502(b)], Nov. 29, 1999, 113 Stat. 1536, 1501A–562, provided that: ‘‘(1) IN GENERAL.—The Comptroller General shall con- duct a 3-year study of the applicants who file only in the United States on or after the effective date of this subtitle [see section 1000(a)(9) [title IV, § 4508] of Pub. L. 106–113, set out as an Effective Date of 1999 Amendment note under section 10 of this title] and shall provide the results of such study to the Judiciary Committees of the House of Representatives and the Senate. ‘‘(2) CONTENTS.—The study conducted under para- graph (1) shall— ‘‘(A) consider the number of such applicants in rela- tion to the number of applicants who file in the United States and outside of the United States; ‘‘(B) examine how many domestic-only filers re- quest at the time of filing not to be published; ‘‘(C) examine how many such filers rescind that re- quest or later choose to file abroad; ‘‘(D) examine the status of the entity seeking an application and any correlation that may exist be- tween such status and the publication of patent ap- plications; and ‘‘(E) examine the abandonment/issuance ratios and length of application pendency before patent issuance or abandonment for published versus unpublished ap- plications.’’ § 123. Micro entity defined (a) IN GENERAL.—For purposes of this title, the term ‘‘micro entity’’ means an applicant who makes a certification that the applicant— (1) qualifies as a small entity, as defined in regulations issued by the Director; (2) has not been named as an inventor on more than 4 previously filed patent applica- tions, other than applications filed in another country, provisional applications under sec- tion 111(b), or international applications filed under the treaty defined in section 351(a) for which the basic national fee under section 41(a) was not paid; (3) did not, in the calendar year preceding the calendar year in which the applicable fee is being paid, have a gross income, as defined in section 61(a) of the Internal Revenue Code of 1986, exceeding 3 times the median house- hold income for that preceding calendar year, as most recently reported by the Bureau of the Census; and (4) has not assigned, granted, or conveyed, and is not under an obligation by contract or law to assign, grant, or convey, a license or other ownership interest in the application concerned to an entity that, in the calendar year preceding the calendar year in which the applicable fee is being paid, had a gross in- come, as defined in section 61(a) of the Inter- nal Revenue Code of 1986, exceeding 3 times the median household income for that pre- ceding calendar year, as most recently re- ported by the Bureau of the Census. (b) APPLICATIONS RESULTING FROM PRIOR EM- PLOYMENT.—An applicant is not considered to be named on a previously filed application for pur- poses of subsection (a)(2) if the applicant has as- signed, or is under an obligation by contract or law to assign, all ownership rights in the appli- cation as the result of the applicant’s previous employment. (c) FOREIGN CURRENCY EXCHANGE RATE.—If an applicant’s or entity’s gross income in the pre- ceding calendar year is not in United States dol- lars, the average currency exchange rate, as re- ported by the Internal Revenue Service, during that calendar year shall be used to determine whether the applicant’s or entity’s gross income Page 59 TITLE 35—PATENTS § 131 1 So in original. Probably should be ‘‘paragraph’’. exceeds the threshold specified in paragraphs 1 (3) or (4) of subsection (a). (d) INSTITUTIONS OF HIGHER EDUCATION.—For purposes of this section, a micro entity shall in- clude an applicant who certifies that— (1) the applicant’s employer, from which the applicant obtains the majority of the appli- cant’s income, is an institution of higher edu- cation as defined in section 101(a) of the High- er Education Act of 1965 (20 U.S.C. 1001(a)); or (2) the applicant has assigned, granted, con- veyed, or is under an obligation by contract or law, to assign, grant, or convey, a license or other ownership interest in the particular ap- plications to such an institution of higher edu- cation. (e) DIRECTOR’S AUTHORITY.—In addition to the limits imposed by this section, the Director may, in the Director’s discretion, impose income limits, annual filing limits, or other limits on who may qualify as a micro entity pursuant to this section if the Director determines that such additional limits are reasonably necessary to avoid an undue impact on other patent appli- cants or owners or are otherwise reasonably nec- essary and appropriate. At least 3 months before any limits proposed to be imposed pursuant to this subsection take effect, the Director shall inform the Committee on the Judiciary of the House of Representatives and the Committee on the Judiciary of the Senate of any such proposed limits. (f) PENALTY FOR FALSE CERTIFICATIONS.—In ad- dition to any other penalty available under law, an entity that is found to have falsely made a certification under this section shall, unless the entity shows that the certification was made in good faith, be subject to a fine, to be determined by the Director, the amount of which shall be not less than 3 times the amount that the entity failed to pay as a result of the false certifi- cation, whether the Director discovers the false certification before or after the date on which a patent has been issued. (Added and amended Pub. L. 112–29, §§ 10(g)(1), 20(j), Sept. 16, 2011, 125 Stat. 318, 335; Pub. L. 112–274, § 1(m), Jan. 14, 2013, 126 Stat. 2459; Pub. L. 117–328, div. W, § 107(b)(2), Dec. 29, 2022, 136 Stat. 5522; Pub. L. 118–151, § 1(2), Dec. 17, 2024, 138 Stat. 1685.) Editorial Notes REFERENCES IN TEXT Section 61(a) of the Internal Revenue Code of 1986, re- ferred to in subsec. (a)(3), (4), is classified to section 61(a) of Title 26, Internal Revenue Code. AMENDMENTS 2024—Subsec. (f). Pub. L. 118–151 inserted ‘‘, unless the entity shows that the certification was made in good faith,’’ before ‘‘be subject’’. 2022—Subsec. (f). Pub. L. 117–328 added subsec. (f). 2013—Subsec. (a). Pub. L. 112–274 inserted ‘‘of this title’’ after ‘‘For purposes’’ in introductory provisions. 2011—Subsec. (a). Pub. L. 112–29, § 20(j), struck out ‘‘of this title’’ after ‘‘For purposes’’ in introductory provi- sions. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2013 AMENDMENT Amendment by Pub. L. 112–274 effective Jan. 14, 2013, and applicable to proceedings commenced on or after such date, see section 1(n) of Pub. L. 112–274, set out as a note under section 5 of this title. EFFECTIVE DATE OF 2011 AMENDMENT Amendment by section 20(j) of Pub. L. 112–29 effective upon the expiration of the 1-year period beginning on Sept. 16, 2011, and applicable to proceedings commenced on or after that effective date, see section 20(l) of Pub. L. 112–29, set out as a note under section 2 of this title. EFFECTIVE DATE Section effective on Sept. 16, 2011, see section 10(i)(1) of Pub. L. 112–29, set out as a Fee Setting Authority note under section 41 of this title. CHAPTER 12—EXAMINATION OF APPLICATION Sec. 131. Examination of application. 132. Notice of rejection; reexamination. 133. Time for prosecuting application. 134. Appeal to the Patent Trial and Appeal Board. 135. Derivation proceedings. Editorial Notes AMENDMENTS 2011—Pub. L. 112–29, § 3(j)(5), Sept. 16, 2011, 125 Stat. 291, amended items 134 and 135 generally, substituting ‘‘Appeal to the Patent Trial and Appeal Board’’ for ‘‘Appeal to the Board of Patent Appeals and Inter- ferences’’ in item 134 and ‘‘Derivation proceedings’’ for ‘‘Interferences’’ in item 135. 1984—Pub. L. 98–622, title II, § 204(b)(2), Nov. 8, 1984, 98 Stat. 3388, substituted ‘‘Patent Appeals and Inter- ferences’’ for ‘‘Appeals’’ in item 134. Statutory Notes and Related Subsidiaries TRANSFER OF ACCELERATION CERTIFICATE ISSUED PURSUANT TO THE PATENTS FOR HUMANITY PROGRAM Pub. L. 116–316, Jan. 5, 2021, 134 Stat. 5065, provided that: ‘‘SECTION 1. SHORT TITLE. ‘‘This Act may be cited as the ‘Patents for Humanity Program Improvement Act’. ‘‘SEC. 2. TRANSFERABILITY OF ACCELERATION CERTIFICATES. ‘‘(a) IN GENERAL.—A holder of an acceleration certifi- cate issued pursuant to the Patents for Humanity Pro- gram (established in the notice entitled ‘Humanitarian Awards Pilot Program’, published at 77 Fed. Reg. 6544 (February 8, 2012)), or any successor thereto, of the United States Patent and Trademark Office, may transfer (including by sale) the entitlement to such ac- celeration certificate to another person. ‘‘(b) REQUIREMENT.—An acceleration certificate transferred under subsection (a) shall be subject to any other applicable limitations under the notice entitled ‘Humanitarian Awards Pilot Program’, published at 77 Fed. Reg. 6544 (February 8, 2012), or any successor thereto.’’ § 131. Examination of application The Director shall cause an examination to be made of the application and the alleged new in- vention; and if on such examination it appears that the applicant is entitled to a patent under the law, the Director shall issue a patent there- for.