What happens if a protest doesn’t include the required statement?
If a protest fails to include the required statement about being the first protest by the real party in interest, the outcome depends on whether it is actually the first protest filed. The MPEP 1901.01 provides guidance on this situation:
“Should the protest (inadvertently or otherwise) fail to include the statement that the protest is the first protest by the real party in interest filing the current protest and fail to comply with 37 CFR 1.291(c)(5), if, in fact, the protest is the first filed protest in an application, it will be considered where all other conditions are met.”
This means that if it is genuinely the first protest, even without the statement, it may still be considered by the USPTO as long as all other requirements are satisfied. However, it’s always best to include the required statement to ensure compliance with the regulations.
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