How can an applicant prove irreparable damage under pre-AIA 37 CFR 1.47(b)?

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.

Under pre-AIA 37 CFR 1.47(b), an applicant can prove irreparable damage by providing a statement that demonstrates the necessity of a filing date. According to MPEP 409.03(g):

Irreparable damage may be established by a pre-AIA 37 CFR 1.47(b) applicant by a showing (a statement) that a filing date is necessary to preserve the rights of the party or to prevent irreparable damage.

This statement should explain why obtaining a specific filing date is crucial for preserving the applicant’s rights or preventing significant harm to their interests.