Can an examiner convert a dependent claim to an independent claim in reexamination?
Yes, an examiner can convert a dependent claim to an independent claim in reexamination under certain circumstances. This typically occurs when a dependent claim is found allowable, but its parent claim is rejected.
The MPEP provides an example of this situation:
Example 2: All claims are rejected in the examiner’s answer. If the Board affirms a rejection against a new or amended independent claim and reverses all rejections against a claim dependent thereon, after expiration of the period for further appeal, the examiner should proceed in one of two ways: (1) Convert the dependent claim into independent form by examiner’s amendment, cancel all claims in which the rejection was affirmed, and prepare the NIRC as appropriate; or (2) Set a 1-month time limit in which appellant may rewrite the dependent claim(s) in independent form.
It’s important to note that if the examiner sets a time limit for the appellant to rewrite the claim, Extensions of time under 37 CFR 1.550(c) will not be permitted.
If no timely reply is received, the examiner will cancel the claims and issue the NIRC accordingly.
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