How does the examiner handle unavailable references in a reissue application?

When a reference cited in the original patent is not available and cannot be obtained from any source other than the reissue applicant (who has not provided it), the examiner follows specific procedures:

1. The examiner will not consider that reference.
2. The reference will not be listed on the PTO-892 form.
3. If the reference was listed by the applicant on a PTO/SB/08 form but no copy was provided, the examiner will line through the reference to indicate it has not been considered.

MPEP § 1406 states: Where a copy of a reference other than a U.S. patent or U.S. patent application publication that was cited in the original patent is not available and cannot be obtained through any source other than the reissue applicant (who has not submitted the copy), the examiner will not consider that reference and therefore, will not list that reference on the PTO-892 form.

This approach ensures that only available and considered references are included in the examination process.

To learn more:

• reissue application
• unavailable references
• PTO-892 form
• patent examination