How can I correct an improper incorporation by reference in a patent application?

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.

To correct an improper incorporation by reference in a patent application:

1. File an amendment to include the material that was improperly incorporated.
2. Submit a statement that the amendment contains no new matter.
3. Ensure the correction is made within the time period set by the Office, or no later than the close of prosecution as defined by 37 CFR 1.114(b).

According to 37 CFR 1.57(g): ‘Any insertion of material incorporated by reference into the specification or drawings of an application must be by way of an amendment to the specification or drawings. Such an amendment must be accompanied by a statement that the material being inserted is the material previously incorporated by reference and that the amendment contains no new matter.’

Note that corrections after abandonment require a petition to revive under 37 CFR 1.137, and corrections after patent issuance require a reissue application.