Can the USPTO independently re-open prosecution of a pending application?

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.

Yes, the USPTO retains the authority to independently re-open prosecution of a pending application, despite the limitations on third-party submissions. This authority is not affected by the provisions of 35 U.S.C. 122(c) and (e).

The MPEP clarifies: “The provisions of 35 U.S.C. 122(c) and (e) limit a third party’s ability to protest, oppose the grant of, or have information entered and considered in an application pending before the Office. However, these provisions do not limit the Office’s authority to independently re-open the prosecution of a pending application on the Office’s own initiative and consider information deemed relevant to the patentability of any claim in the application.“

This authority was affirmed in the case of Blacklight Power, Inc. v. Rogan, 295 F.3d 1269, 63 USPQ2d 1534 (Fed. Cir. 2002).