What Every Patent and Trademark Lawyer Should Understand About the MPEP, TMEP, and Other Guidance : How to Use (and Defend Against) the MPEP to be a Better Advocate

The administrative law lays out limits on the ways that federal agencies may use guidance documents vis-à-vis rights of the public. It’s crucial for every patent practitioner to understand those limits—when does the MPEP state binding law, when is it mere aspiration for what an agency would like the law to be, when is it asymmetric (binding against the agency, but not against any member of the public), when is it an offer of a quid pro quo (the agency promises “if you do this, we’ll do that”), and when is it invalid and entirely unenforceable? When has the PTO broken the law, and what rights does that give you? Knowing the difference, and following the practical advice outlined below, can prevent you from unintentionally compromising your client’s rights