Can the USPTO withdraw an application from issue on its own initiative?
Yes, the USPTO can withdraw an application from issue on its own initiative. The MPEP states:
“The Director may withdraw an application from issue under 37 CFR 1.313 on his or her own initiative.“
This authority is supported by case law, as noted in the MPEP:
“See BlackLight Power Inc. v. Rogan, 295 F.3d 1269, 1273, 63 USPQ2d 1534, 1537 (Fed. Cir. 2002) (USPTO may withdraw a patent application from issuance after the issue fee has been paid.) and Harley v. Lehman, 981 F. Supp. 9, 12, 44 USPQ2d 1699, 1702 (D.D.C. 1997) (adoption of 37 CFR 1.313(b) permitting applications to be withdrawn from issue under certain narrow circumstances not directly covered by the statute was not unreasonable).”
However, this withdrawal must be consistent with 35 U.S.C. 151 and based on specific conditions outlined in 37 CFR 1.313(b).
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