502.02 Correspondence Signature Requirements [R-07.2022]

Correspondence filed in the Office, which requires a person’s signature, may be filed with one of two types of signatures: (A) handwritten signature; and (B) “S-signature.” See 37 CFR 1.4(d). Additionally, pursuant to 37 CFR 1.4(d)(3), correspondence filed via the USPTO patent electronic filing system may be signed by a graphic representation of a handwritten signature as provided for in 37 CFR 1.4(d)(1) or a graphic representation of an S-signature as provided for in 37 CFR 1.4(d)(2). A graphic representation of a handwritten signature may be created by using a stylus pen and/or touch-pad. All correspondence, except for a notice of appeal pursuant to 37 CFR 41.31, filed in the Office must include a signature. See 37 CFR 1.4, 1.33, and 11.18.

I. HANDWRITTEN SIGNATURE

A person’s handwritten signature may be an original or a copy thereof. The word original, as used herein, is defined as correspondence which is personally signed in permanent dark ink or its equivalent by the person whose signature appears thereon. Dark ink or equivalent permits traditional ink and newer non-liquid gel type ink technologies. Since incoming correspondence is electronically stored and scanned as a black and white image, a dark color is required so that the scanned image is legible. Where copies of correspondence are acceptable, photocopies or facsimile transmissions may be filed. For example, a photocopy or facsimile transmission of an original of an amendment, declaration (e.g., under 37 CFR 1.63 or 1.67), petition, issue fee transmittal form, and authorization to charge a deposit account or a credit card may be submitted in a patent application. Where copies are permitted, second and further generation copies (i.e., copy of a copy) are acceptable. For example, a client may fax a paper to an attorney and the attorney may then fax the paper to the Office, provided the paper is eligible to be faxed (see MPEP § 502.01). The original, if not submitted to the Office, should be retained as evidence of proper execution in the event that questions arise as to the authenticity of the signature reproduced on the photocopy or facsimile-transmitted correspondence. If a question of authenticity arises, the Office may require submission of the original.

37 CFR 1.4(d)(1) covers all handwritten signatures. The requirement in 37 CFR 1.4(d)(1) of permanent dark ink or its equivalent relates to whether a handwritten signature is compliant and is not limiting on the type of handwritten signature that is covered by 37 CFR 1.4(d)(1). Thus, 37 CFR 1.4(d)(1) would cover handwritten signatures in red ink or in pencil; although, under 37 CFR 1.4(d)(1) neither would be acceptable since red ink is not dark, and pencil is not permanent. A scanned image of a document that contains a handwritten signature filed via the USPTO patent electronic filing system is permitted as a copy under 37 CFR 1.4(d)(1)(ii). A signature applied by an electric or mechanical typewriter directly to paper is not a handwritten signature, which is applied by hand. Accordingly, if a typewriter applied signature is used, it must meet the requirements of 37 CFR 1.4(d)(2). Adding forward slashes to a handwritten (or hand-printed) ink signature that is personally applied will not cause the signature to be treated under 37 CFR 1.4(d)(2). Such a signature will be treated under 37 CFR 1.4(d)(1) with the slashes ignored. The end product from a manually applied hand stamp or from a signature replication or transfer means (such as by pen or by screen) appears to be a handwritten signature, but is not actually handwritten, and would be treated under 37 CFR 1.4(d)(2). An electronic reproduction of a handwritten signature, e.g., scanned, that is electronically applied to a document is not a personally signed original document under 37 CFR 1.4(d)(1)(i) and reproductions of such correspondence cannot be copies under 37 CFR 1.4(d)(1)(ii). A graphic representation of a handwritten signature as provided for in 37 CFR 1.4(d)(1) will be accepted when submitted via the USPTO patent electronic filing system, pursuant to 37 CFR 1.4(d)(3).

II. S-SIGNATURE

The second type of signature is an S-signature. See 37 CFR 1.4(d)(2). An S-signature is a signature inserted between forward slash marks, but not a handwritten signature as defined by 37 CFR 1.4(d)(1). An S-signature includes any signature made by electronic or mechanical means, and any other mode of making or applying a signature not covered by either a handwritten signature of 37 CFR 1.4(d)(1). The S-signature can be used with correspondence e.g., oaths and affidavits filed in the Office in paper, by facsimile transmission as provided in 37 CFR 1.6(d), or via the USPTO patent electronic filing system as an attachment as provided in 37 CFR 1.6(a)(4), for a patent application, a patent, or a reexamination or supplemental examination proceeding. 37 CFR 1.4(d) does not authorize filing correspondence by email. A legible electronic image of a handwritten signature inserted, or copied and pasted by the person signing the correspondence into the correspondence may be considered to be an acceptable signature under 37 CFR 1.4(d)(2) provided the signature is surrounded by a first single forward slash mark before the electronic image and a second single forward slash mark after the electronic image and includes the signers name below or adjacent to the signature as required.

An S-signature must consist only of letters, or Arabic numerals, or both, with appropriate spaces and punctuation (i.e., commas, periods, apostrophes, or hyphens). “Letters” include English and non- English alphabet letters, and text characters (e.g., Kanji). Non-text, graphic characters (e.g., a smiley face created in the True Type Wing Dings font) are not permitted. “Arabic numerals” are the numerals 0, 1, 2, 3, 4, 5, 6, 7, 8, and 9, which are the standard numerals used in the United States. To accommodate as many varieties of names as possible, a signer may select any combination of letters, Arabic numerals, or both, for their S-signature under 37 CFR 1.4(d)(2)(i). The person signing the correspondence must insert their own S-signature with a first single forward slash mark before, and a second single forward slash mark after, the S-signature (e.g., /Dr. James T. Jones, Jr./). Additional forward slashes are not permitted as part of the S-signature. The presentation of just letters and Arabic numerals as an S-signature without the S-signature being placed between two forward slashes will be treated as an unsigned document.

Commas, periods, apostrophes, and hyphens are often found in names and will therefore be found in many S-signatures. These punctuation marks and appropriate spaces may be used with letters and Arabic numerals in an S-signature. A sample S-signature including punctuation marks and spaces, between two forward slashes, is: /John P. Doe/. Punctuation marks, per se, are not punctuation and are not permitted without proper association with letters and Arabic numerals. An S-signature of only punctuation marks would be improper (e.g., /- – -/). In addition, punctuation marks, such as question marks (e.g., /???/), are often utilized to represent an intent not to sign a document and may be interpreted to be a non-bona fide attempt at a signature, in addition to being improper.

Script fonts are not permitted for any portion of a document except the S-signature. See 37 CFR 1.52(b)(2)(ii). Presentation of a typed name in a script font without the typed name being placed between the required slashes does not present the proper indicia manifesting an intent to sign and will be treated as an unsigned document.

37 CFR 1.4(d)(2)(i) also defines who can insert an S-signature into a document. 37 CFR 1.4(d)(2)(i) requires that a person, which includes a practitioner, must insert their own signature using letters and/or Arabic numerals, with appropriate commas, periods, apostrophes, or hyphens as punctuation and spaces. The “must insert his or her own signature” requirement is met by the signer directly typing their own signature using a keyboard. The requirement does not permit one person (e.g., a secretary) to type in the signature of a second person (e.g., a practitioner) even if the second person directs the first person to do so. A person physically unable to use a keyboard, however, may, while simultaneously reviewing the document for signature, direct another person to press the appropriate keys to form the S-signature.

A signature which is created using a commercial signing system may be acceptable under 37 CFR 1.4(d)(2) if the signature is inserted between forward slash marks or under 37 CFR 1.4(d)(3) if the signature is a graphic representation of either a handwritten signature or an S-signature and submitted via the USPTO patent electronic filing system. 37 CFR 1.4(d)(3) does not apply to documents submitted in paper.

For consistency purposes, and to avoid raising a doubt as to who has signed, the same S-signature should be utilized each time, with variations of the signature being avoided. The signer should review any indicia of identity of the signer in the body of the document, including any printed or typed name and registration number, to ensure that the indicia of identity in the body of the document is consistent with how the document is S-signed. Knowingly adopting an S-signature of another is not permitted.

While an S-signature need not be the name of the signer of the document, the Office strongly suggests that each signer use an S-signature that has their full name. The Office expects that where persons do not sign with their name it will be because they are using an S-signature that is the usual S-signature for that person, which is their own signature, and not something that is employed to obfuscate or misidentify the signer. Titles may be used with the signer’s S-signature and must be placed between the slash marks (e.g., /Dr. John Doe/), or with the printed or typed version of the name.

37 CFR 1.4(d)(2)(ii) requires that a practitioner (37 CFR 1.32(a)(1)) signing pursuant to 37 CFR 1.33(b)(1) or (b)(2) must place his or her registration number, either as part of, or adjacent, his or her S-signature. A number character (#) may only be used in an S-signature if it is prior to a practitioner’s registration number that is part of the S-signature. For an application filed on or after September 16, 2012, when a practitioner is signing as an applicant as defined in 37 CFR 1.42 (e.g., as an inventor), a registration number is not required and should not be supplied to avoid confusion as to which basis the practitioner is signing, e.g., as a practitioner or as the applicant. A patent practitioner signing on behalf of a juristic entity applicant (see 37 CFR 1.33(b)(3)) is signing as a patent practitioner and thus must provide his or her registration number. For applications filed before September 16, 2012, when a practitioner is signing as an applicant as defined in pre-AIA 37 CFR 1.41 or as an assignee a registration number is not required and should not be supplied for the reasons noted above.

The signer’s name must be (A) presented in printed or typed form preferably immediately below or adjacent the S-signature, and (B) reasonably specific enough so that the identity of the signer can be readily recognized. See 37 CFR 1.4(d)(2)(iii)(A). The printed or typed name requirement is intended to describe any manner of applying the signer’s name to the document, including by a typewriter or machine printer. It could include a printer (mechanical, electrical, optical, etc.) associated with a computer or a facsimile machine but would not include manual or hand printing. See 37 CFR 1.52(a)(1)(iv). The printed or typed name may be inserted before or after the S-signature is applied, and it does not have to be inserted by the S-signer. A printed or typed name appearing in the letterhead or body of a document is not acceptable as the presentation of the name of the S-signer. A graphic representation of an S-signature as provided for in 37 CFR 1.4(d)(2) with be accepted when submitted via the USPTO patent electronic filing system, pursuant to 37 CFR 1.4(d)(3).

III. CERTIFICATIONS

37 CFR 1.4(d)(4)(i) establishes that the presentation to the Office (whether by signing, filing, submitting, or later advocating) of any paper by a party, whether a practitioner or non- practitioner, constitutes a certification under 37 CFR 11.18(b) of this chapter.

37 CFR 1.4(d)(4)(ii) establishes certifications as to the signature of another for a person submitting a document signed by another under 37 CFR 1.4(d)(2) or 37 CFR 1.4(d)(3) . Thus, the submitting person is obligated to have a reasonable basis to believe that the person whose signature is present on the document actually inserted the signature on the document. Such reasonable basis does not require an actual knowledge but does require some reason to believe the signature is appropriate. For example, where a practitioner emails a 37 CFR 1.63 declaration to an inventor for signature by the inventor and receives an executed declaration by the inventor in return from the inventor, reasonable basis would exist. Evidence of authenticity should be retained. This may involve retaining the emails sent to the inventor and any cover letter or email (with the signed document as an attachment) back to the practitioner from the inventor in the example relating to execution of a 37 CFR 1.63 declaration.

37 CFR 1.4(d)(4)(ii) further establishes that a person inserting a signature under 37 CFR 1.4(d)(2) or 37 CFR 1.4(d)(3) in a document submitted to the Office certifies that the inserted signature appearing in the document is his or her own signature. This is meant to prohibit a first person from requesting a second person to insert the first person’s signature in a document. While the certification is directed at the person inserting another S- signature, the person requesting the inappropriate insertion may also be subject to sanctions.

37 CFR 1.4(d)(4)(ii) additionally establishes that violations of the certifications as to the signature of another or a person’s own signature, set forth in 37 CFR 1.4(d)(4)(ii) , may result in the imposition of sanctions under 37 CFR 11.18(c) and (d).

IV. RATIFICATION, CONFIRMATION, OR EVIDENCE OF AUTHENTICITY

Pursuant to 37 CFR 1.4(h), the Office may additionally inquire in regard to a signature so as to identify the signer and clarify the record where the identity of the signer is unclear. An example of when ratification or confirmation of a signature may be required is when there are variations in a signature or whenever a name in an S-signature is not exactly the same as the name indicated as an inventor, or a practitioner of record. Hence, whatever signature is adopted by a signer, that signature should be consistently used on all documents. Also addressed is the treatment of variations in a signature or where a printed or typed name accompanies the S-signature but the identity of the signer is unclear. In such cases, the Office may require ratification or confirmation of a signature. Ratification requires the person ratifying to state he/she personally signed the previously submitted document as well as, if needed, the submission of a compliant format of the signature. Confirmation includes submitting a duplicate document, which is compliantly signed if the previous signature was noncompliant (as opposed to unclear). Where it is necessary to ratify the signatures on multiple previously submitted documents, the ratification paper should include an itemized list of the documents and their filing dates.

In lieu of ratification, the Office may require a resubmission of a properly signed duplicate document. Resubmission of a document may be required, for example, where ratification alone is inappropriate, such as where the image of the signature is of such poor quality (e.g., illegible font) that the Office is unable to store or reproduce the document with the signature image.

Ratification or confirmation alone does not provide a means for changing the name of a signer. For example, when an inventor changes their name and the inventor desires to change their name in the nonprovisional application, such change must be by way of a request under 37 CFR 1.48(f). See MPEP §§ 602.01(c)(2) and 602.08(b).

In addition, the Office may require evidence of authenticity where the Office has reasonable doubt as to the authenticity (veracity) of the signature. Evidence of authenticity may include evidence establishing a chain of custody of a document from the person signing the document to the person filing the document. Proper evidence of a chain of custody will aid in avoiding the impact of repudiation of a signature.

Where there has been a bona fide attempt to follow the rule, but where there is some doubt as to the identity of the signer of a signed document, the Office may require ratification of the signature. Note, ratification would only be an effective remedy if the signer was a proper party to have executed the document to be ratified. For example, a practitioner of record may ratify his or her signature on an amendment, but not the signature of a secretary who is not a practitioner or inventor in the application. A registered practitioner may, however, ratify the amendment made by another registered practitioner but may not ratify a document required to be signed by an inventor, such as a 37 CFR 1.63 declaration. Similarly, an inadvertent typographical error or simple misspelling of a name will be treated as a bona fide attempt to follow the rule, which would require ratification only where there is some doubt as to the identity of the signer rather than be treated as an unsigned paper requiring resubmission. Where there is an obvious typographical error so that the Office does not have some doubt as to the identity of the signer (and therefore notification to applicant is not needed), further action by applicant would not be required and, where appropriate, the obvious error will be noted in the record.

The inadvertent failure to follow the format and content of an S-signature will be treated as a bona fide attempt at a signature but the paper will be considered as being unsigned correspondence. Examples of correspondence that will be treated as unsigned are (A) the S-signature is not enclosed in forward slashes, (B) the S-signature is composed of non-text graphic characters (e.g., a smiley face) and not letters and numerals, and (C) the S-signature is not a name and there is no other accompanying name adjacent or below the S-signature so that the identity of the signer cannot be readily recognized.

If the signer, after being required to ratify or resubmit a document with a compliant signature, repeats the same S-signature in reply without appropriate correction, the reply will not be considered to be a bona fide attempt to reply, and no additional time period will be given to submit a properly signed document.

V. CERTIFICATION OF DOCUMENTS PROVIDED FOR BY STATUTE

When a statute requires or permits the Director to require a document to be certified (such as the requirement in 37 CFR 1.55 for a certified copy of a foreign patent application pursuant to 35 U.S.C. 119 or a certified copy of an international application pursuant to 35 U.S.C. 365) a copy of the certification, including a photocopy or facsimile transmission, will not be acceptable. Note that for applications filed under 35 U.S.C. 111(a), foreign priority documents retrieved by the Office from a foreign intellectual property office that participates with the Office in a priority document exchange (PDX) agreement can serve as the certified copy provided the requirements of 37 CFR 1.55(h) are met. The requirement for an original certification does not apply to certifications such as required under 37 CFR 1.8 since these certifications are not provided for by statute.