If a competitor finds out that a particular application exists and believes it should not issue as a patent they may send in a protest. A protestor must have a good reason as to why the pending application should not be allowed. Valid protest reasons include; information concerning the patentability of the subject matter (i.e., if it was on sale or published more than a year before the filing of the application) or if the inventorship is inaccurate.

A protest must identify the application in question and list the evidence, whether it be a patent, a publication, or any other information used to show that the subject matter is not patentable. It should include a copy of these incriminating items and must explain their relevance. In addition, the protest must be serviced to the applicant in order to make them aware of the incriminating prior art. If it is not possible to service the protest to the applicant, two copies of it must be mailed to the PTO.

Once the PTO receives the protest, they will determine whether or not it is of significance with regards to the patentability of the subject matter. After sending in the protest, the protestor has no further involvement and does not need to file anything further.

A protest must be submitted prior to the publication of the application or the mailing of a Notice of Allowance (whichever occurs first), unless the protest is sent in with a letter of consent by the applicant.

The best part about a protest is that there is no fee. After the protest has been serviced to the applicant, the applicant will usually have a chance to comment on it before the examiner makes a decision. Protests should only be used when the issue at stake is the patentability of the subject matter. They may not be used when the issue at stake involves fraud or inequitable conduct.