Frequently Asked Questions
Common questions about Third-Party Preissuance Submissions under 35 U.S.C. § 122(e), answered in plain English.
These questions reflect what independent inventors, founders, and in-house counsel most commonly ask when they first encounter the 3PPS mechanism. For deeper coverage of any topic, follow the links in the answers.
Cost & Fees
How much does it cost to submit prior art to the USPTO?
Filing a 3PPS is free if it is your first submission for a given application and you submit 3 or fewer documents (the § 1.290(g) exemption). If you submit 4–10 documents, or have previously filed for the same application, fees apply: $180 for small entities and $360 for large entities per 10 documents.
The exemption resets per application — not per filer globally. If you have 5 strong references, you may strategically use the exemption for your 3 best documents and pay the fee for the remaining two.
Who qualifies as a "small entity" for USPTO fee purposes?
A small entity is an independent inventor, a small business concern with 500 or fewer employees, or a nonprofit organization. Large companies (500+ employees) and their licensees pay large entity fees. Micro entity status (50% fee reduction) requires meeting additional income and prior filing limits under 37 CFR 1.29.
Timing & Deadlines
What is the deadline for a Third-Party Preissuance Submission?
The deadline is the earlier of:
- The date a Notice of Allowance is mailed — a hard stop that can arrive without warning; or
- The later of: 6 months after the application published, or the date of the first Office Action on the merits.
Use the Deadline Calculator to check your specific window. Do not wait — the window can close overnight when an NOA issues.
Can I file a 3PPS after a Notice of Allowance has issued?
No. Once a Notice of Allowance is mailed, the 3PPS window closes permanently. The only post-grant options are Inter Partes Review (IPR) — available 9 months after grant — or Post-Grant Review (PGR), available within 9 months of grant for AIA patents.
Does filing extend the examination timeline?
No. A 3PPS does not create any formal delay in prosecution. The Examiner considers the submitted documents as part of normal examination without any procedural requirement to hold the case open.
Anonymity & Identity
Can I remain anonymous when submitting prior art to the USPTO?
Yes. Anonymous filing is explicitly permitted under 37 CFR 1.290. You are not required to identify yourself on Form PTO/SB/429 or anywhere in the submission. The filing will be entered into the public file wrapper, but your identity need not appear on any document.
This is a significant advantage over an Inter Partes Review, where the real party in interest must be disclosed.
Can a competitor file a 3PPS against my pending patent?
Yes — anyone except the applicant (and those with an obligation to assign rights to the applicant) may file. There is no requirement to disclose who filed or why. This is by design: the AIA intended to open examination to public participation while preventing the mechanism from being used as a harassment tool by requiring that submissions be factual and document-based.
What You Can and Cannot Submit
What types of documents can I submit?
You may submit:
- US patents and published US patent applications
- Foreign patents and foreign published patent applications
- Printed publications — academic papers, product manuals, conference proceedings, datasheets, website archives
You cannot submit declarations, affidavits, physical objects, videos, or non-documentary evidence. Each document must be accompanied by a Concise Description of Relevance.
Can I argue that a patent claim is invalid in my submission?
No. Under 37 CFR 1.290(d)(3), descriptions must be purely factual. Legal conclusions ("this anticipates claim 1"), obviousness arguments ("one skilled in the art would combine..."), and statutory citations (§ 102, § 103) will cause the submission to be refused entry. See the Drafting Guide for compliant examples.
Do I need to submit a translation for foreign-language references?
Yes. If a reference is in a foreign language, you must provide an English translation of the relevant portions, along with a statement that the translation is accurate. Full document translation is not required — only the portions you are citing.
What Happens After Filing
Will I be notified whether my submission was accepted?
Not directly. You will receive a filing receipt from the USPTO. To confirm entry, monitor the application's file wrapper in USPTO Patent Center 2–4 weeks after filing. If refused, the USPTO will return the submission with an explanation.
What happens if the Examiner considers my prior art but allows the patent anyway?
The patent will issue. Crucially, because the Examiner has already considered your reference, it is more difficult (though not legally barred) to use that same reference in a future IPR. The PTAB may decline to institute review on grounds already considered by a trained Examiner. This "practical estoppel" risk is why you should carefully consider whether to file or hold your art. See Strategic Risks for full analysis.
What is the difference between a 3PPS and an IPR?
| Factor | 3PPS | IPR |
|---|---|---|
| Timing | Before grant | 9 months after grant |
| Cost | Free or ~$180 | $30,000–$100,000+ |
| Anonymity | Allowed | Real party must be disclosed |
| Participation | None — file and walk away | Full adversarial proceedings |
| Arguments | Facts only | Full legal arguments |
The Glossary defines all key terms. The MPEP § 1134 ↗ is the authoritative USPTO guidance on third-party submissions. For legal advice specific to your situation, consult a registered patent practitioner.