713.05 Interviews Prohibited or Granted, Special Situations [R-07.2022]
Except in unusual situations, interviews with examiners are not permitted after the submission of an appeal brief or after a notice of allowability for the application has been mailed.
An interview may be appropriate before applicant’s first reply when the examiner has suggested that allowable subject matter is present or where it will assist applicant in judging the propriety of continuing the prosecution.
Office employees are forbidden to hold either oral or written communication with an unregistered or a suspended or excluded attorney or agent regarding an application unless it is one in which said attorney or agent is the applicant. See MPEP § 105.
Interviews (MPEP § 713) are frequently requested by persons whose credentials are of such informal character that there is serious question as to whether such persons are entitled to any information under the provisions of 37 CFR 1.14. In general, interviews are not granted to persons who lack proper authority from the applicant or attorney or agent of record in the form of a submission on file in the application. A MERE POWER TO INSPECT IS NOT SUFFICIENT AUTHORITY FOR GRANTING AN INTERVIEW INVOLVING THE MERITS OF THE APPLICATION.
Interviews are generally not granted to registered individuals to whom there is no power of attorney or authorization to act in a representative capacity. See MPEP § 405 for additional information and for form PTO/SB/84, Authorization to Act in a Representative Capacity. Note that pursuant to 37 CFR 11.106, a practitioner cannot authorize other registered practitioners to conduct interviews unless the client gives informed consent. Furthermore, even with informed consent, a practitioner should not authorize a nonpractitioner to conduct interviews as this could be considered aiding in the unauthorized practice of law. See 37 CFR 11.505.
While a registered practitioner not of record may request an interview (if the practitioner is authorized to do so by the applicant or the attorney of record), it is recommended that a power of attorney or authorization to act in a representative capacity be filed, preferably electronically, prior to the interview. Registered practitioners, when acting in a representative capacity, can alternatively show authorization to conduct an interview by completing, signing and filing an Applicant Initiated Interview Request Form (PTOL-413A). This eliminates the need to file a power of attorney or authorization to act in a representative capacity before having an interview. However, an interview concerning an application that has not been published under 35 U.S.C. 122(b) with an attorney or agent not of record who obtains authorization through use of the of the interview request form will be conducted based on the information and files supplied by the attorney or agent in view of the confidentiality requirements of 35 U.S.C. 122(a).
Interviews normally should not be granted unless the requesting party has authority to bind the principal concerned. The use of the provisions of 37 CFR 1.34 by a third party or its representative to conduct an interview, or take other action not specifically permitted by the rules of practice in an application for patent, will be considered a violation of 37 CFR 11.18 and may result in disciplinary action if done by a practitioner. See MPEP § 410 for a discussion of violations of 37 CFR 11.18.
For an interview with an examiner who does not have negotiation authority, arrangements should always include an examiner who does have such authority, and who is familiar with the application, so that authoritative agreement may be reached at the time of the interview.
For attorneys remote from the Washington, D.C. area who prefer in-person or video conference interviews, the grouped interview practice is effective. Where agreement is reached as a result of an interview, applicant or applicant’s attorney or agent, as appropriate, should be advised that an amendment pursuant to the agreement should be promptly submitted.