On the IDS form itself, you can check either of the two boxes to provide your certification statement. In the first box you are essentially stating that you filed the same patent application in one or more foreign countries, and when foreign patent offices conducted their own patent search, they informed you about the reference you are now submitting to the USPTO in the current IDS, and that your current IDS submission is occurring not more than three months after being informed of the reference by the foreign patent office. In the second box you are essentially stating that you weren't informed of this reference by a foreign patent office, and that no more than three months have passed since you first discovered the reference you are now submitting in the IDS.
There are three relevant periods to submit an IDS:
A. Within three months of filing the patent application, or before receiving a first office action on the merits -- you can submit your IDS without paying a fee, and without having to make the certification statement.
B. After the period A above, but before prosecution has closed, and before you have received a final office action, and before you have received a notice of allowance -- you can submit your IDS, but you must either pay the fee, or you must make the required certification statement.
C. After the period B above, you must pay the fee and make the required certification statement.
When you file a patent application, the client and his agents/attorneys have an ongoing duty to disclose all material references that they are aware of to the USPTO -- even if those references are adverse to the client's own position in getting their patent issued. Why have this requirement? Most of law is inter partes (adversarial) -- where one party is fighting another. The assumption is that in an adversarial proceeding, the judge will get to fairly hear both sides of the argument.
Patent prosecution, by contrast, is ex parte. That is to say, it s just one side presenting their case to the judge -- who in this case, happens to be the patent examiner. There is no advocate present during these proceedings to represent the the public's interest in not having the patent issued. For this reason, patent applicants (and their agents/attorneys) have this increased burden, which continues until the patent issues.
The IDS is a form that is used to identify and disclose such material references to the USPTO. If you don't disclose such references, and you later try to enforce the patent, the alleged infringer can try to get your patent rendered unenforceable due to your inequitable conduct (specifically, failing to disclose material references to the USPTO during patent prosecution).
Is the attorney docket number used primarily for the attorney to keep track of the application in their own docket management software?
Yes, a docket number is an identifier for attorney client matters (and it is not merely limited to patent applications). There is usually a client identifier followed by a matter identifier, because the same client could have engaged the law firm for multiple matters. At one of my earlier firms, the attorney docket number had this format:
[Client Name].[Matter Number]
In this case, the Client was "Apple, Inc." and this was the third matter that the law firm handled for them, which happened to be a provisional patent application.
Many of the larger firms prefer using numbers, instead of names, to identify their clients. There is a good reason for this--the client could change their business name sometime in the future. Suppose Apple, Inc. changed its business name to Orange, Inc. If they did that, the law firm would have to update the docket numbers on all of their past filings, which could be hundreds of filings. But if they instead used a numeric identifier to identify their client, they could just change one entry in their internal client list. So Instead of 10324 = Apple, Inc., they could just change that to 10324 = Orange, Inc., and all cases could stay docketed as 10324.00x.
Why would an applicant opt out of authorizing foreign IP offices access to a U.S. patent application?
Clients normally won't do this. I suppose there could be situations where certain clients don't trust how foreign government agencies will handle the sensitive/confidential information they have provided within their U.S. patent application.
However, this section of the ADS is less about accommodating that group than it is about complying with other laws already in effect. More specifically, the United States has laws (e.g. , 35 U.S.C. 122) which require the USPTO to keep the inventor's application confidential (at least, until that patent application publishes 18 months after filing). In earlier times, the patent applicant had to file an ADS, and then later submit additional forms which specifically granted the USPTO permission to share the contents of the patent application with foreign entities. Over time, however, the rule became a procedural pain, because every time someone wanted to file a patent application in the U.S. and in other countries (which happened a large number of times), these extra forms also had to be submitted. Extra fees also had to be paid by the patent applicant with the submission of these forms.
So after some lobbying from the ABA and other groups, Congress decided to make the process more streamlined by switching to the "opt-out" approach that you see now. These days, when you file an ADS, your default position is that you authorize foreign agencies to access your U.S. patent application. Rather than forcing a large group of people to "opt in" with additional forms and fees, a much smaller group of people who want to "opt-out" can do so by checking the appropriate "opt-out" boxes. Again, the section is mainly just a byproduct of the laws that require the USPTO to keep patent applications confidential until they are given written permission by the patent applicant to do otherwise.
Does a design application require a textual description of the figures that are illustrated within it?
No description of the design in the specification, beyond a brief description of the drawings, is generally necessary, since as a rule the illustration in the drawing views is its own best description. See MPEP 1503.01.
37 C.F.R. 1.154(b) requires:
"(b) The specification should include the following sections in order:
What are the requirements for a design application, and what order should such elements appear during submission?
37 C.F.R. 1.154 specifically states:
"(a) The elements of the design application, if applicable, should appear in the following order:
Are there any legal issues which may arise upon a successful traversal of the Examiner's restriction requirement of a design application?
Possibly. If multiple designs are held to be patentably indistinct and can be covered by a single claim, any rejection of one design over prior art will apply equally to all designs. See Ex parte Appeal No. 315-40, 152 USPQ 71 (Bd. App. 1965).
What argument must be presented in order to traverse a restriction requirement issued in a design application?
MPEP 1504.05 specifically states:
"Clear admission on the record by the applicant that the embodiments are not patentably distinct will not overcome a requirement for restriction if the embodiments do not meet the following two requirements:
(A) the embodiments have overall appearances with basically the same design characteristics; and
(B) the differences between the embodiments are insufficient to patentably distinguish one design from the other.
Regarding the second requirement, without evidence, such an admission is merely a conclusory statement."