What is a rejection based on disclaimer in patent law?

This page is an FAQ based on guidance from the Manual of Patent Examining Procedure. It is provided as guidance, with links to the ground truth sources. This is information only: it is not legal advice.

A rejection based on disclaimer in patent law occurs when an applicant is considered to have disclaimed the subject matter involved. This can happen in several scenarios, as outlined in MPEP 2304.04(c):

• Failure to make claims suggested for interference with another application
• Failure to copy a claim from a patent when suggested by the examiner
• Failure to respond or appeal within the time limit to the examiner’s rejection of claims copied from a patent

The MPEP states: “Claims may be rejected on the ground that applicant has disclaimed the subject matter involved.” This rejection applies to all claims not patentably distinct from the disclaimed subject matter.