US (United States) Code. Title 35. Part IV: Patent cooperation treaty. Chapter 37: National Stage

Codificación normativa de EEUU (Estados Unidos) Legislación Federal estadounidense # Patents

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35 USC CHAPTER 37 - NATIONAL STAGE 01/06/03

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TITLE 35 - PATENTS

PART IV - PATENT COOPERATION TREATY

CHAPTER 37 - NATIONAL STAGE

-HEAD-

CHAPTER 37 - NATIONAL STAGE

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Sec.

371. National stage: Commencement.

372. National stage: Requirements and procedure.

373. Improper applicant.

374. Publication of international application.

375. Patent issued on international application: Effect.

376. Fees.

AMENDMENTS

1999 - Pub. L. 106-113, div. B, Sec. 1000(a)(9) [title IV, Sec.

4507(12)], as added by Pub. L. 107-273, div. C, title III, Sec.

13205(2)(F), Nov. 2, 2002, 116 Stat. 1903, substituted "Publication

of international application" for "Publication of international

application: Effect" in item 374.

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35 USC Sec. 371 01/06/03

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TITLE 35 - PATENTS

PART IV - PATENT COOPERATION TREATY

CHAPTER 37 - NATIONAL STAGE

-HEAD-

Sec. 371. National stage: Commencement

-STATUTE-

(a) Receipt from the International Bureau of copies of

international applications with any amendments to the claims,

international search reports, and international preliminary

examination reports including any annexes thereto may be required

in the case of international applications designating or electing

the United States.

(b) Subject to subsection (f) of this section, the national stage

shall commence with the expiration of the applicable time limit

under article 22(1) or (2), or under article 39(1)(a) of the treaty

(!1)

(c) The applicant shall file in the Patent and Trademark Office -

(1) the national fee provided in section 41(a) of this title;

(2) a copy of the international application, unless not

required under subsection (a) of this section or already

communicated by the International Bureau, and a translation into

the English language of the international application, if it was

filed in another language;

(3) amendments, if any, to the claims in the international

application, made under article 19 of the treaty, unless such

amendments have been communicated to the Patent and Trademark

Office by the International Bureau, and a translation into the

English language if such amendments were made in another

language;

(4) an oath or declaration of the inventor (or other person

authorized under chapter 11 of this title) complying with the

requirements of section 115 of this title and with regulations

prescribed for oaths or declarations of applicants;

(5) a translation into the English language of any annexes to

the international preliminary examination report, if such annexes

were made in another language.

(d) The requirements with respect to the national fee referred to

in subsection (c)(1), the translation referred to in subsection

(c)(2), and the oath or declaration referred to in subsection

(c)(4) of this section shall be complied with by the date of the

commencement of the national stage or by such later time as may be

fixed by the Director. The copy of the international application

referred to in subsection (c)(2) shall be submitted by the date of

the commencement of the national stage. Failure to comply with

these requirements shall be regarded as abandonment of the

application by the parties thereof, unless it be shown to the

satisfaction of the Director that such failure to comply was

unavoidable. The payment of a surcharge may be required as a

condition of accepting the national fee referred to in subsection

(c)(1) or the oath or declaration referred to in subsection (c)(4)

of this section if these requirements are not met by the date of

the commencement of the national stage. The requirements of

subsection (c)(3) of this section shall be complied with by the

date of the commencement of the national stage, and failure to do

so shall be regarded as a cancellation of the amendments to the

claims in the international application made under article 19 of

the treaty. The requirement of subsection (c)(5) shall be complied

with at such time as may be fixed by the Director and failure to do

so shall be regarded as cancellation of the amendments made under

article 34(2)(b) of the treaty.

(e) After an international application has entered the national

stage, no patent may be granted or refused thereon before the

expiration of the applicable time limit under article 28 or article

41 of the treaty, except with the express consent of the applicant.

The applicant may present amendments to the specification, claims

and drawings of the application after the national stage has

commenced.

(f) At the express request of the applicant, the national stage

of processing may be commenced at any time at which the application

is in order for such purpose and the applicable requirements of

subsection (c) of this section have been complied with.

-SOURCE-

(Added Pub. L. 94-131, Sec. 1, Nov. 14, 1975, 89 Stat. 688; amended

Pub. L. 98-622, title IV, Secs. 402(a)-(d), 403(a), Nov. 8, 1984,

98 Stat. 3391, 3392; Pub. L. 99-616, Sec. 7, Nov. 6, 1986, 100

Stat. 3486; Pub. L. 102-204, Sec. 5(g)(2), Dec. 10, 1991, 105 Stat.

1641; Pub. L. 106-113, div. B, Sec. 1000(a)(9) [title IV, Sec.

4732(a)(10)(A)], Nov. 29, 1999, 113 Stat. 1536, 1501A-582; Pub. L.

107-273, div. C, title III, Sec. 13206(a)(20), (b)(1)(B), Nov. 2,

2002, 116 Stat. 1905, 1906.)

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AMENDMENTS

2002 - Subsec. (d). Pub. L. 107-273, Sec. 13206(b)(1)(B), made

technical correction to directory language of Pub. L. 106-113. See

1999 Amendment note below.

Pub. L. 107-273, Sec. 13206(a)(20), inserted period at end.

1999 - Subsec. (d). Pub. L. 106-113, as amended by Pub. L.

107-273, Sec. 13206(b)(1)(B), substituted "Director" for

"Commissioner" wherever appearing.

1991 - Subsec. (c)(1). Pub. L. 102-204 substituted "provided in

section 41(a) of this title" for "prescribed under section

376(a)(4) of this part".

1986 - Subsec. (a). Pub. L. 99-616, Sec. 7(a), amended subsec.

(a) generally. Prior to amendment, subsec. (a) read as follows:

"Receipt from the International Bureau of copies of international

applications with amendments to the claims, if any, and

international search reports may be required in the case of all

international applications designating the United States."

Subsec. (b). Pub. L. 99-616, Sec. 7(b), amended subsec. (b)

generally, substituting ", or under article 39(1)(a) of the treaty"

for "of the treaty."

Subsec. (c)(4), (5). Pub. L. 99-616, Sec. 7(c), (d), substituted

a semicolon for a period at end of par. (4) and added par. (5).

Subsec. (d). Pub. L. 99-616, Sec. 7(e), inserted "The requirement

of subsection (c)(5) shall be complied with at such time as may be

fixed by the Commissioner and failure to do so shall be regarded as

cancellation of the amendments made under article 34(2)(b) of the

treaty" at end.

Subsec. (e). Pub. L. 99-616, Sec. 7(f), inserted "or article 41"

after "article 28".

1984 - Subsec. (a). Pub. L. 98-622, Sec. 402(a), substituted "may

be" for "is" and struck out ", except those filed in the Patent

Office" after "United States", which amendment was executed by

striking out ", except those filed in the Patent and Trademark

Office" as the probable intent of Congress in view of the amendment

by section 403(a) of Pub. L. 98-622. See Effective Date of 1984

Amendment note below.

Pub. L. 98-622, Sec. 403(a), substituted "Patent and Trademark

Office" for "Patent Office".

Subsec. (b). Pub. L. 98-622 struck out ", at which time the

applicant shall have complied with the applicable requirements

specified in subsection (c) of this section" after "of the treaty".

Subsec. (c). Pub. L. 98-622, Sec. 403(a), substituted "Patent and

Trademark Office" for "Patent Office" in provisions preceding par.

(1) and in par. (3).

Subsec. (c)(2). Pub. L. 98-622, Sec. 402(c)(1), (2), substituted

"communicated by" for "received from" and struck out "verified"

before "translation".

Subsec. (d). Pub. L. 98-622, Sec. 402(d), substituted provisions

setting forth time periods for compliance with the requirements of

subsec. (c), payments of surcharges, and the effect of failure to

comply for provisions related only to the effect of failure to

comply with the requirements of subsec. (c).

EFFECTIVE DATE OF 1999 AMENDMENT

Amendment by Pub. L. 106-113 effective 4 months after Nov. 29,

1999, see section 1000(a)(9) [title IV, Sec. 4731] of Pub. L.

106-113, set out as a note under section 1 of this title.

EFFECTIVE DATE OF 1986 AMENDMENT

Amendment by Pub. L. 99-616 effective July 1, 1987, and

applicable to all international applications pending before or

after that date, see section 9 of Pub. L. 99-616, set out as a note

under section 351 of this title.

EFFECTIVE DATE OF 1984 AMENDMENT

Amendment by section 402(a)-(d) of Pub. L. 98-622 effective six

months after Nov. 8, 1984, see section 406(b) of Pub. L. 98-622,

set out as a note under section 3 of this title.

Amendment by section 403(a) of Pub. L. 98-622 effective Nov. 8,

1984, see section 406(a) of Pub. L. 98-622, set out as a note under

section 351 of this title.

EFFECTIVE DATE

Chapter effective Jan. 24, 1978, and applicable to international

and national applications filed, on and after that date, see

section 11 of Pub. L. 94-131, set out as a note under section 351

of this title.

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 154, 366 of this title.

-FOOTNOTE-

(!1) So in original. Probably should be followed by a period.

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35 USC Sec. 372 01/06/03

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TITLE 35 - PATENTS

PART IV - PATENT COOPERATION TREATY

CHAPTER 37 - NATIONAL STAGE

-HEAD-

Sec. 372. National stage: Requirements and procedure

-STATUTE-

(a) All questions of substance and, within the scope of the

requirements of the treaty and Regulations, procedure in an

international application designating the United States shall be

determined as in the case of national applications regularly filed

in the Patent and Trademark Office.

(b) In case of international applications designating but not

originating in, the United States -

(1) the Director may cause to be reexamined questions relating

to form and contents of the application in accordance with the

requirements of the treaty and the Regulations;

(2) the Director may cause the question of unity of invention

to be reexamined under section 121 of this title, within the

scope of the requirements of the treaty and the Regulations; and

(3) the Director may require a verification of the translation

of the international application or any other document pertaining

to the application if the application or other document was filed

in a language other than English.

-SOURCE-

(Added Pub. L. 94-131, Sec. 1, Nov. 14, 1975, 89 Stat. 689; amended

Pub. L. 98-622, title IV, Secs. 402(e), (f), 403(a), Nov. 8, 1984,

98 Stat. 3392; Pub. L. 106-113, div. B, Sec. 1000(a)(9) [title IV,

Sec. 4732(a)(10)(A)], Nov. 29, 1999, 113 Stat. 1536, 1501A-582;

Pub. L. 107-273, div. C, title III, Sec. 13206(b)(1)(B), Nov. 2,

2002, 116 Stat. 1906.)

-MISC1-

AMENDMENTS

2002 - Subsec. (b). Pub. L. 107-273 made technical correction to

directory language of Pub. L. 106-113. See 1999 Amendment note

below.

1999 - Subsec. (b). Pub. L. 106-113, as amended by Pub. L.

107-273, substituted "Director" for "Commissioner" wherever

appearing.

1984 - Subsec. (a). Pub. L. 98-622, Sec. 403(a), substituted

"Patent and Trademark Office" for "Patent Office".

Subsec. (b)(3). Pub. L. 98-622, Sec. 402(e), added par. (3).

Subsec. (c). Pub. L. 98-622, Sec. 402(f), struck out subsec. (c)

which related to cancellation of claims and payment of special

fees.

EFFECTIVE DATE OF 1999 AMENDMENT

Amendment by Pub. L. 106-113 effective 4 months after Nov. 29,

1999, see section 1000(a)(9) [title IV, Sec. 4731] of Pub. L.

106-113, set out as a note under section 1 of this title.

EFFECTIVE DATE OF 1984 AMENDMENT

Amendment by section 402(e), (f) of Pub. L. 98-622 effective six

months after Nov. 8, 1984, see section 406(b) of Pub. L. 98-622,

set out as a note under section 3 of this title.

Amendment by section 403(a) of Pub. L. 98-622 effective Nov. 8,

1984, see section 406(a) of Pub. L. 98-622, set out as a note under

section 351 of this title.

-End-

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35 USC Sec. 373 01/06/03

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TITLE 35 - PATENTS

PART IV - PATENT COOPERATION TREATY

CHAPTER 37 - NATIONAL STAGE

-HEAD-

Sec. 373. Improper applicant

-STATUTE-

An international application designating the United States, shall

not be accepted by the Patent and Trademark Office for the national

stage if it was filed by anyone not qualified under chapter 11 of

this title to be an applicant for the purpose of filing a national

application in the United States. Such international applications

shall not serve as the basis for the benefit of an earlier filing

date under section 120 of this title in a subsequently filed

application, but may serve as the basis for a claim of the right of

priority under subsections (a) through (d) of section 119 of this

title, if the United States was not the sole country designated in

such international application.

-SOURCE-

(Added Pub. L. 94-131, Sec. 1, Nov. 14, 1975, 89 Stat. 689; amended

Pub. L. 98-622, title IV, Sec. 403(a), Nov. 8, 1984, 98 Stat. 3392;

Pub. L. 103-465, title V, Sec. 532(c)(5), Dec. 8, 1994, 108 Stat.

4987.)

-MISC1-

AMENDMENTS

1994 - Pub. L. 103-465 substituted "subsections (a) through (d)

of section 119" for "section 119".

1984 - Pub. L. 98-622 substituted "Patent and Trademark Office"

for "Patent Office".

EFFECTIVE DATE OF 1994 AMENDMENT

Amendment by Pub. L. 103-465 effective 6 months after Dec. 8,

1994, and applicable to all patent applications filed in the United

States on or after that effective date, with provisions relating to

earliest filed patent application, see section 534(b)(1), (3) of

Pub. L. 103-465, set out as a note under section 154 of this title.

EFFECTIVE DATE OF 1984 AMENDMENT

Amendment by Pub. L. 98-622 effective Nov. 8, 1984, see section

406(a) of Pub. L. 98-622, set out as a note under section 351 of

this title.

-End-

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35 USC Sec. 374 01/06/03

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TITLE 35 - PATENTS

PART IV - PATENT COOPERATION TREATY

CHAPTER 37 - NATIONAL STAGE

-HEAD-

Sec. 374. Publication of international application

-STATUTE-

The publication under the treaty defined in section 351(a) of

this title, of an international application designating the United

States shall be deemed a publication under section 122(b), except

as provided in sections 102(e) and 154(d) of this title.

-SOURCE-

(Added Pub. L. 94-131, Sec. 1, Nov. 14, 1975, 89 Stat. 689; amended

Pub. L. 106-113, div. B, Sec. 1000(a)(9) [title IV, Sec. 4507(10)],

Nov. 29, 1999, 113 Stat. 1536, 1501A-566; Pub. L. 107-273, div. C,

title III, Sec. 13205(2)(E), Nov. 2, 2002, 116 Stat. 1903.)

-MISC1-

AMENDMENTS

2002 - Pub. L. 107-273 amended Pub. L. 106-113, Sec. 1000(a)(9)

[title IV, Sec. 4507(10)], see 1999 Amendment note below. Prior to

being amended by Pub. L. 107-273, Pub. L. 106-113, Sec. 1000(a)(9)

[title IV, Sec. 4507(10)], had amended this section to read as

follows: "The publication under the treaty defined in section

351(a) of this title, of an international application designating

the United States shall confer the same rights and shall have the

same effect under this title as an application for patent published

under section 122(b), except as provided in sections 102(e) and

154(d) of this title."

1999 - Pub. L. 106-113, as amended by Pub. L. 107-273, amended

section catchline and text generally. Prior to amendment, text read

as follows: "The publication under the treaty of an international

application shall confer no rights and shall have no effect under

this title other than that of a printed publication."

EFFECTIVE DATE OF 1999 AMENDMENT

Amendment by Pub. L. 106-113 effective Nov. 29, 2000, and

applicable only to applications (including international

applications designating the United States) filed on or after that

date, see section 1000(a)(9) [title IV, Sec. 4508] of Pub. L.

106-113, as amended, set out as a note under section 10 of this

title.

-End-

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35 USC Sec. 375 01/06/03

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TITLE 35 - PATENTS

PART IV - PATENT COOPERATION TREATY

CHAPTER 37 - NATIONAL STAGE

-HEAD-

Sec. 375. Patent issued on international application: Effect

-STATUTE-

(a) A patent may be issued by the Director based on an

international application designating the United States, in

accordance with the provisions of this title. Subject to section

102(e) of this title, such patent shall have the force and effect

of a patent issued on a national application filed under the

provisions of chapter 11 of this title.

(b) Where due to an incorrect translation the scope of a patent

granted on an international application designating the United

States, which was not originally filed in the English language,

exceeds the scope of the international application in its original

language, a court of competent jurisdiction may retroactively limit

the scope of the patent, by declaring it unenforceable to the

extent that it exceeds the scope of the international application

in its original language.

-SOURCE-

(Added Pub. L. 94-131, Sec. 1, Nov. 14, 1975, 89 Stat. 689; amended

Pub. L. 106-113, div. B, Sec. 1000(a)(9) [title IV, Sec.

4732(a)(10)(A)], Nov. 29, 1999, 113 Stat. 1536, 1501A-582; Pub. L.

107-273, div. C, title III, Sec. 13206(b)(1)(B), Nov. 2, 2002, 116

Stat. 1906.)

-MISC1-

AMENDMENTS

2002 - Subsec. (a). Pub. L. 107-273 made technical correction to

directory language of Pub. L. 106-113. See 1999 Amendment note

below.

1999 - Subsec. (a). Pub. L. 106-113, as amended by Pub. L.

107-273, substituted "Director" for "Commissioner".

EFFECTIVE DATE OF 1999 AMENDMENT

Amendment by Pub. L. 106-113 effective 4 months after Nov. 29,

1999, see section 1000(a)(9) [title IV, Sec. 4731] of Pub. L.

106-113, set out as a note under section 1 of this title.

-End-

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35 USC Sec. 376 01/06/03

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TITLE 35 - PATENTS

PART IV - PATENT COOPERATION TREATY

CHAPTER 37 - NATIONAL STAGE

-HEAD-

Sec. 376. Fees

-STATUTE-

(a) The required payment of the international fee and the

handling fee, which amounts are specified in the Regulations, shall

be paid in United States currency. The Patent and Trademark Office

shall charge a national fee as provided in section 41(a), and may

also charge the following fees:

(1) A transmittal fee (see section 361(d)).

(2) A search fee (see section 361(d)).

(3) A supplemental search fee (to be paid when required).

(4) A preliminary examination fee and any additional fees (see

section 362(b)).

(5) Such other fees as established by the Director.

(b) The amounts of fees specified in subsection (a) of this

section, except the international fee and the handling fee, shall

be prescribed by the Director. He may refund any sum paid by

mistake or in excess of the fees so specified, or if required under

the treaty and the Regulations. The Director may also refund any

part of the search fee, the national fee, the preliminary

examination fee, and any additional fees, where he determines such

refund to be warranted.

-SOURCE-

(Added Pub. L. 94-131, Sec. 1, Nov. 14, 1975, 89 Stat. 690; amended

Pub. L. 98-622, title IV, Secs. 402(g), 403(a), Nov. 8, 1984, 98

Stat. 3392; Pub. L. 99-616, Sec. 8, Nov. 6, 1986, 100 Stat. 3486;

Pub. L. 102-204, Sec. 5(g)(1), Dec. 10, 1991, 105 Stat. 1640; Pub.

L. 106-113, div. B, Sec. 1000(a)(9) [title IV, Sec.

4732(a)(10)(A)], Nov. 29, 1999, 113 Stat. 1536, 1501A-582; Pub. L.

107-273, div. C, title III, Sec. 13206(a)(21), (b)(1)(B), Nov. 2,

2002, 116 Stat. 1905, 1906.)

-MISC1-

AMENDMENTS

2002 - Subsec. (a)(1) to (3). Pub. L. 107-273, Sec. 13206(a)(21),

substituted period for semicolon at end.

Subsecs. (a)(5), (b). Pub. L. 107-273, Sec. 13206(b)(1)(B), made

technical correction to directory language of Pub. L. 106-113. See

1999 Amendment note below.

1999 - Subsecs. (a)(5), (b). Pub. L. 106-113, as amended by Pub.

L. 107-273, Sec. 13206(b)(1)(B), substituted "Director" for

"Commissioner" wherever appearing.

1991 - Subsec. (a). Pub. L. 102-204, Sec. 5(g)(1)(A), in

introductory provisions inserted "shall charge a national fee as

provided in section 41(a), and" after "Office", redesignated pars.

(5) and (6) as (4) and (5), respectively, and struck out former

par. (4), which read as follows: "A national fee (see section

371(c));".

Subsec. (b). Pub. L. 102-204, Sec. 5(g)(1)(B), substituted "the

national fee, the preliminary examination fee," for "the

preliminary examination fee".

1986 - Subsec. (a). Pub. L. 99-616, Sec. 8(a), in introductory

provisions, inserted "and the handling fee" and substituted

"amounts are" for "amount is", added par. (5), and redesignated

former par. (5) as (6).

Subsec. (b). Pub. L. 99-616, Sec. 8(b), inserted "and the

handling fee" and "the preliminary examination fee and any

additional fees,".

1984 - Subsec. (a). Pub. L. 98-622, Sec. 403(a), substituted

"Patent and Trademark Office" for "Patent Office" in provision

preceding par. (1).

Subsec. (a)(5), (6). Pub. L. 98-622, Sec. 402(g), redesignated

par. (6) as (5). Former par. (5), which read "A special fee (to be

paid when required; see section 372(c))", was struck out.

EFFECTIVE DATE OF 1999 AMENDMENT

Amendment by Pub. L. 106-113 effective 4 months after Nov. 29,

1999, see section 1000(a)(9) [title IV, Sec. 4731] of Pub. L.

106-113, set out as a note under section 1 of this title.

EFFECTIVE DATE OF 1986 AMENDMENT

Amendment by Pub. L. 99-616 effective July 1, 1987, and

applicable to all international applications pending before or

after that date, see section 9 of Pub. L. 99-616, set out as a note

under section 351 of this title.

EFFECTIVE DATE OF 1984 AMENDMENT

Amendment by section 402(g) of Pub. L. 98-622 effective six

months after Nov. 8, 1984, see section 406(b) of Pub. L. 98-622,

set out as a note under section 3 of this title.

Amendment by section 403(a) of Pub. L. 98-622 effective Nov. 8,

1984, see section 406(a) of Pub. L. 98-622, set out as a note under

section 351 of this title.

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in section 361 of this title.

-End-

-CITE-

35 USC [CHAPTER 38 - TRANSFERRED] 01/06/03

-EXPCITE-

TITLE 35 - PATENTS

PART IV - PATENT COOPERATION TREATY

[CHAPTER 38 - TRANSFERRED]

-HEAD-

[CHAPTER 38 - TRANSFERRED]

-COD-

CODIFICATION

Chapter 38, as added by Pub. L. 96-517, Sec. 6(a), Dec. 12, 1980,

94 Stat. 3018, was originally editorially inserted after chapter 17

of this title because the probable intent of Congress was to

designate the chapter as "18", in view of the numerical designation

of the sections contained in the chapter as sections 200 to 211 and

in view of the subject matter of the chapter in relation to the

subject matter of Part II of this title. Pub. L. 97-256, title I,

Sec. 101(5), Sept. 8, 1982, 96 Stat. 816, redesignated chapter 38

as chapter 18 and transferred chapter 18, as so redesignated, from

the end of this part to the end of Part II. See 1982 Amendment note

set out under the analysis of chapter 18 (Sec. 200 et seq.) of this

title.

-End-