What is the “basic thrust of the rejection” in patent appeals?
The “basic thrust of the rejection” is a crucial concept in determining whether a new ground of rejection has been introduced in patent appeals. According to MPEP 1207.03(a):
“A position or rationale that changes the “basic thrust of the rejection” will give rise to a new ground of rejection.”
The basic thrust of the rejection refers to the fundamental reasoning or basis for the rejection. It encompasses the core arguments and evidence used to support why the claimed invention is not patentable. A change in the basic thrust occurs when the examiner introduces new facts, rationales, or interpretations that substantially alter the underlying basis for the rejection, such that the applicant hasn’t had a fair opportunity to respond to these new elements.
Importantly, the MPEP notes that “A new ground of rejection is not necessarily raised when the basic thrust of the rejection remains the same such that an appellant has been given a fair opportunity to react to the rejection.” This means that minor clarifications or elaborations that don’t fundamentally change the rejection’s basis typically don’t constitute a new ground of rejection.
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