In reference to the patent: US8280641

The http://www.fractogene.com page alludes to the U.S.C. 2163.07(b) Incorporation by Reference. What is the significance of this reference to patent law?

2 Answers 2


There is no "U.S.C. 2163.07(b)". The website's author is mistaken.

Instead, it appears he is intends to refer to MPEP § 2163.07(b). MPEP (the Manual of Patent Examining Procedure) is not law in any real sense. Instead, it is just the guidelines that are provided to examiners to allow them to have a reasonably consistent approach when examining.

MPEP § 2163.07(b) provides:

Instead of repeating some information contained in another document, an application may attempt to incorporate the content of another document or part thereof by reference to the document in the text of the specification. The information incorporated is as much a part of the application as filed as if the text was repeated in the application, and should be treated as part of the text of the application as filed. Replacing the identified material incorporated by reference with the actual text is not new matter. See 37 CFR 1.57 and MPEP § 608.01(p) for Office policy regarding incorporation by reference. See MPEP § 2181 for the impact of incorporation by reference on the determination of whether applicant has complied with the requirements of 35 U.S.C. 112(b) or pre-AIA 35 U.S.C. 112, second paragraph when 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph is invoked.

This is a curious thing to refer to. However, looking at the file wrapper of the case, it appears the USPTO examiner objected that the description was insufficient, as it tried to incorporate essential material by reference, rather than describing the material directly. The applicant argued that this approach was allowable, and referred to that passage of the MPEP. It appears the examiner eventually gave in, after being sent copies of all the documents.


The http://www.fractogene.com page has been updated to reflect 35 U.S.C. 112 with MPEP 2181. All documents "incorporated by reference" were made available to USPTO and the patent was issued. The file wrapper indicates the very significant size of documents, but USPTO practices did not make the files themselves downloadable. The materials "incorporated by reference", since all are public, can be absolutely obtained independently with an appropriate effort. Should anyone call for assistance, the inventor is available for curious parties to obtain materials and/or advises how the occasionally very heavily mathematical materials can be used with their least effort for particular purposes of users.

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