What happens if a replacement deposit is not made in a pending patent case?

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.

If a replacement deposit is not made in a pending patent case where a deposit is considered necessary to satisfy the requirements of 35 U.S.C. 112, the application or patent will be treated as if no deposit were made. As stated in MPEP 2407.03:

“37 CFR 1.805(d) sets forth the Office position that the failure to make a replacement deposit in a case pending before the Office, for example a reissue or reexamination proceeding, where a deposit is considered to be necessary to satisfy the requirements of 35 U.S.C. 112, shall cause the application or patent involved to be treated in any Office proceeding as if no deposit were made.”

This means that the applicant or patent owner must ensure that a valid deposit is maintained throughout the pendency of the application or life of the patent to avoid potential issues with meeting the requirements of 35 U.S.C. 112.