MPEP 509.04(d)
Continued Obligation to Determine Micro Entity Qualification

This is the Ninth Edition of the MPEP, Revision 08.2017, Last Revised in Januay 2018

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509.04(d)    Continued Obligation to Determine Micro Entity Qualification [R-11.2013]

37 C.F.R. 1.29  Micro entity status.

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  • (g) A certification of entitlement to micro entity status need only be filed once in an application or patent. Micro entity status, once established, remains in effect until changed pursuant to paragraph (i) of this section. However, a fee may be paid in the micro entity amount only if status as a micro entity as defined in paragraph (a) or (d) of this section is appropriate on the date the fee is being paid. Where an assignment of rights or an obligation to assign rights to other parties who are micro entities occurs subsequent to the filing of a certification of entitlement to micro entity status, a second certification of entitlement to micro entity status is not required.
  • (h) Prior to submitting a certification of entitlement to micro entity status in an application, including a related, continuing, or reissue application, a determination of such entitlement should be made pursuant to the requirements of this section. It should be determined that each applicant qualifies for micro entity status under paragraph (a) or (d) of this section, and that any other party holding rights in the invention qualifies for small entity status under § 1.27. The Office will generally not question certification of entitlement to micro entity status that is made in accordance with the requirements of this section.

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An applicant is not required to provide a certification of micro entity status with each fee payment once micro entity status has been established by filing a certification in an application. While an applicant is not required to provide such a certification with each fee payment, the applicant must still be entitled to micro entity status to pay a fee in the micro entity amount at the time of all payments of fees in the micro entity amount. Thus it must be determined whether the requirements for micro entity status exist at the time each fee payment is made. If any requirement for micro entity status is no longer met, then the applicant must notify the Office of loss of micro entity status and pay the required fee in the small entity or undiscounted amount, as appropriate.

For micro entity status on the gross income basis under 37 CFR 1.29(a), the applicant must determine that the applicant and each inventor or joint inventor still meet the applicable conditions of 37 CFR 1.29(a) to claim micro entity status. For example, the applicant must determine that neither the applicant nor inventor nor joint inventor has had a change in gross income that exceeds the "maximum qualifying gross income" as reported on the USPTO website (a new determination must be made each year because gross income may change from year to year, and micro entity status is based upon gross income in the calendar year preceding the calendar year in which the applicable fee is being paid). In addition, the applicant must determine that neither the applicant nor inventor nor joint inventor has made, or is obligated by contract or law to make, an assignment, grant, or conveyance to an entity exceeding the "maximum qualifying gross income," and that no new inventor or joint inventor has been named in the application who does not meet the conditions specified in 37 CFR 1.29(a). See MPEP § 509.04(a), subsection I, for additional information.

For micro entity status under 35 U.S.C. 123(d), the applicant must determine that each applicant still complies with 37 CFR 1.29(d) (e.g., still obtains the majority of his or her income from an institution of higher education as defined in section 101(a) of the Higher Education Act of 1965 (20 U.S.C. 1001(a)). 37 CFR 1.29(g) also provides that where an assignment of rights or an obligation to assign rights to other parties who are micro entities occurs subsequent to the filing of a certification of entitlement to micro entity status, a second certification of entitlement to micro entity status is not required.