Can a third party requester comment on a patent owner’s incomplete response?

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, a third party requester can comment on a patent owner’s incomplete response. However, the rules for commenting depend on the nature of the incomplete response:

• If the response is incomplete due to substantive issues, the third party requester can comment on both the original incomplete response and the completed response.
• If the response is incomplete only due to a fee requirement (other than excess claims fees), the third party requester must comment within 30 days of the original response and cannot comment on the fee submission alone.

As stated in MPEP 2666.40:

The third party requester may file comments on the Office action and the response as completed within 30 days of the date of service of the completed response. This is true whether or not the third party requester filed comments on the original response that was incomplete.