The titles "supervisory patent examiner" and "primary examiner," as used in this Chapter 900, include in their definition any person designated by them to act on their behalf. It is recognized that authority to accept or refuse the transfer of an application classified in USPC may be delegated when such authority is deserved.

The primary examiners in design and plant areas have been designated full authority to accept any application submitted to them that they believe is properly classifiable in a class in their art unit.

New nonprovisional design and plant applications are assigned to Technology Centers (TCs) 2900 and 1600, respectively, in the first instance by the Office of Patent Application Processing (OPAP).

Every nonprovisional design and plant application, new or amended, and including the drawings, if any, when first assigned to a Technology Center (TC) must be classified and assigned to an examiner for examination. The supervisory patent examiner normally assigns the application to an examiner. Provisional applications (Plant only) are not classified or assigned since they are not examined.

If an examiner other than the supervisory patent examiner is given the responsibility of assigning applications, time so spent may, at the TC Director’s discretion, be charged to "Other Time- Classify (non-PGPub) and assign cases".

I. TRANSFER OF DESIGN APPLICATIONS

Technology Center (TC) 2900 has developed internal procedures for transferring applications between examiners/art units and resolving application assignment disputes.

When an examiner believes an application, either new or amended, does not belong in their customarily assigned art area, they may request transfer of the application from their docket (the "originating" examiner docket) to another examiner's docket or art unit (the "receiving" examiner or art unit docket). The originating examiner should determine the proposed classification of the application in question. If the classification is not easily determined, the examiner may need to perform a cursory search or place a call to the applicant to better understand the art area where the application should be placed.

To initiate the application transfer the examiner should send an email to the examiner who customarily examines the art of the proposed classification change (receiving examiner) and provide a full explanation of the reasons for the proposed classification.

If the receiving examiner has the authority to accept any application submitted to them that they believe is properly classifiable in a class in their customarily assigned art area, they classify and assign the application.

The decision as to the classification resolution and assignment of an application is customarily made by agreement between the examiners involved in the transfer. However, if no agreement can be reached between the examiners, the transfer request may be forwarded to the supervisors of the originating and receiving examiners for decision. If no agreement can be reached between the supervisors, the transfer request should be forwarded to the TC 2900 docketing POC for a final decision.

If an examiner encounters an assigned application that appears to be improper for their docket based on a factor other than the classification of the application (e.g. could be considered a utility application), the examiner should send an email to the TC 2900 docketing POC for evaluation of the application. If the application is deemed improper for that examiner’s docket, the application will be removed from the examiner’s docket, and will be appropriately reassigned by the TC 2900 docketing POC. In the event the application is deemed proper after reevaluation from the TC 2900 docketing POC, the case will be returned to the originating examiner’s docket and will be examined as a design application.

II. TRANSFER OF PLANT APPLICATIONS

All plant patent applications under 35 U.S.C. 161 are assigned and examined in Art Unit (AU) 1661. If an application is accidently routed to the AU which is not a plant application, the application will be manually rerouted to OPAP for routing to the appropriate AU.

This section applies only to nonprovisional design and plant applications. It does not apply to provisional applications since such applications are not examined. For nonprovisional utility applications see MPEP § 909.01.

The following are only general guides, and exceptions frequently arise because of some unusual condition. Patent examiners are confronted with an already existing classification made up of newly revised classes, those revised years ago and which have somewhat outgrown their definitions and limits, and still others made a generation ago and never changed. Also, these classes are based on different theories and plans, some on art, some on structure, some on functions, and some on the material worked upon. The patent examiners cannot change this existing condition as each application comes up for assignment, but must seek to place the cases where they are appropriately assigned. An application will be assigned as follows:

1. (A) The assignment of nonprovisional design and plant applications follows, as far as possible, the rules or principles governing the classification of patents. Applications are generally assigned on the basis of where the application would have an original classification, if the claims it contains were in a patent.
2. (B) The criteria by which the original classification is determined are set forth in MPEP § 903.07.
3. (C) The claims and statement of invention are generally taken as they read; however, claims must be read in light of the disclosure (claimed disclosure). Any attempt to go behind the record and decide the case upon what is deemed the "real invention" would, it is believed, introduce more errors than such action would cure. Supervisory patent examiners (SPEs) cannot possess the specific knowledge of the state of the art in all the classes that the patent examiners collectively possess. Further, such questions are matters of merit for the examiners to determine and are often open to argument and are a subject for appeal.
4. (D) Within a class, looking down from the top of the schedule, the OR subclass is chosen from among the classifications of the claimed disclosure according to whichever one is the most indented subclass of the first subclass array.
5. (E) As stated in MPEP § 903.07, the location of the United States patents constituting the prior art is generally controlling over all else. (Note: Where time permits, obvious misplacements of the patents constituting the prior art are corrected, but to straighten all lines as the cases come up for assignment would require the time of several people.)
6. (F) Ordinarily, an application cannot be assigned to a class which includes one element or part only of several claimed in combination. The claim is treated in its entirety.
7. (G) An examiner seeking the transfer of a case may make a search, both of their own class and the class to which they think the case should be transferred, and the examiner in charge of the art unit should ensure the record includes the result of the search.