Can an examiner reopen prosecution after a Board decision in a patent application?
Yes, an examiner can reopen prosecution after a Board decision in certain circumstances. According to MPEP 1214:
“The examiner may reopen prosecution to enter a new ground of rejection after a Board decision only with the written approval of the Technology Center (TC) Director or Deputy TC Director.”
This means that reopening prosecution is not a unilateral decision by the examiner but requires higher-level approval. The process typically involves:
- The examiner must obtain written approval from the TC Director or Deputy TC Director.
- A new ground of rejection must be presented.
- The reopening should be based on substantial new evidence or reasoning not previously considered.
It’s important to note that reopening prosecution is not common and should be done only when necessary to address significant issues not previously considered by the Board.
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