402.03 Signature Requirements for Papers Filed in an Application [R-07.2015]
I. SIGNATURE AND CERTIFICATE
37 C.F.R. 11.18 Signature and certificate for correspondence filed in the Office.
- (a) For all documents filed in the Office in patent, trademark, and other non-patent matters, and all documents filed with a hearing officer in a disciplinary proceeding, except for correspondence that is required to be signed by the applicant or party, each piece of correspondence filed by a practitioner in the Office must bear a signature, personally signed or inserted by such practitioner, in compliance with § 1.4(d) or § 2.193(a) of this chapter.
- (b) By presenting to the Office or hearing officer in a disciplinary proceeding (whether by signing, filing, submitting, or later advocating) any paper, the party presenting such paper, whether a practitioner or non-practitioner, is certifying that—
- (1) All statements made therein of the party’s own knowledge are true, all statements made therein on information and belief are believed to be true, and all statements made therein are made with the knowledge that whoever, in any matter within the jurisdiction of the Office, knowingly and willfully falsifies, conceals, or covers up by any trick, scheme, or device a material fact, or knowingly and willfully makes any false, fictitious, or fraudulent statements or representations, or knowingly and willfully makes or uses any false writing or document knowing the same to contain any false, fictitious, or fraudulent statement or entry, shall be subject to the penalties set forth under 18 U.S.C. 1001 and any other applicable criminal statute, and violations of the provisions of this section may jeopardize the probative value of the paper; and
- (2) To the best of the party’s knowledge, information and belief, formed after an inquiry reasonable under the circumstances,
- (i) The paper is not being presented for any improper purpose, such as to harass someone or to cause unnecessary delay or needless increase in the cost of any proceeding before the Office;
- (ii) The other legal contentions therein are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law;
- (iii) The allegations and other factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery; and
- (iv) The denials of factual contentions are warranted on the evidence, or if specifically so identified, are reasonably based on a lack of information or belief.
- (c) Violations of any of paragraphs (b)(2)(i) through (iv) of this section are, after notice and reasonable opportunity to respond, subject to such sanctions or actions as deemed appropriate by the USPTO Director, which may include, but are not limited to, any combination of—
- (1) Striking the offending paper;
- (2) Referring a practitioner’s conduct to the Director of Enrollment and Discipline for appropriate action;
- (3) Precluding a party or practitioner from submitting a paper, or presenting or contesting an issue;
- (4) Affecting the weight given to the offending paper; or
- (5) Terminating the proceedings in the Office.
- (d) Any practitioner violating the provisions of this section may also be subject to disciplinary action.
37 CFR 11.18(a) emphasizes that every paper filed by a practitioner must be personally signed by the practitioner, except those required to be signed by the applicant or party.
37 CFR 11.18(b) provides that, by presenting any paper to the Office, the party presenting such paper (whether a practitioner or nonpractitioner) is: (1) certifying that the statements made therein are subject to the declaration clause of 37 CFR 1.68; and (2) making the certifications required for papers filed in a federal court under Rule 11(b) of the Federal Rules of Civil Procedure. See MPEP § 410. 37 CFR 11.18(d) provides that any practitioner violating the provisions of 37 CFR 11.18 may also be subject to disciplinary action, thus clarifying that a practitioner may be subject to disciplinary action in lieu of, or in addition to, the sanctions set forth in 37 CFR 11.18(c) for violations of 37 CFR 11.18. See also 37 CFR 1.4(d)(4).
The certifications in 37 CFR 11.18(b) apply to all papers filed in the Office, including allegations of improper conduct made by a registered practitioner in any Office proceeding.
II. ACTING IN A REPRESENTATIVE CAPACITY
37 C.F.R. 1.34 Acting in a representative capacity
When a patent practitioner acting in a representative capacity appears in person or signs a paper in practice before the United States Patent and Trademark Office in a patent case, his or her personal appearance or signature shall constitute a representation to the United States Patent and Trademark Office that under the provisions of this subchapter and the law, he or she is authorized to represent the particular party on whose behalf he or she acts. In filing such a paper, the patent practitioner must set forth his or her registration number, his or her name and signature. Further proof of authority to act in a representative capacity may be required.
In accordance with 37 CFR 1.34, a paper filed by a registered patent attorney or agent in an application in which he or she is not of record must include his or her name and registration number with his or her signature. Acceptance of papers filed in patent applications and reexamination proceedings by registered attorneys and agents upon a representation that the attorney or agent is authorized to act in a representative capacity is for the purpose of facilitating replies on behalf of applicants in patent applications and, further, to obviate the need for filing powers of attorney in individual applications or patents when there has been a change in composition of law firms or corporate patent staffs.
See MPEP § 408 for information concerning interviews with an attorney or agent not of record.
Except as noted below, a person acting in a representative capacity may not sign (A) a power of attorney (37 CFR 1.32 ), (B) a document granting access to an application, (C) a change of correspondence address)), (D) a terminal disclaimer (37 CFR 1.321(b)(1)(iv) ), or (E) a request for an express abandonment without filing a continuing application (37 CFR 1.138(b) ). In an application filed on or after September 16, 2012, a person acting in a representative capacity may sign a document granting access to an application or a change of correspondence address if (1) a power of attorney has not been appointed under 37 CFR 1.32(b) and (2) the patent practitioner was named in the application transmittal papers. See 37 CFR 1.14(c) and 1.33(a). In an application filed before September 16, 2012, a person acting in a representative capacity may sign a document granting access to an application or a change of correspondence address if (1) an executed oath or declaration under pre-AIA 37 CFR 1.63 has not been filed and (2) the patent practitioner was named in the application transmittal papers. See pre-AIA 37 CFR 1.14(c) and pre-AIA 37 CFR 1.33(a).