What happens if an improper CPA is filed?
When an improper Continued Prosecution Application (CPA) is filed, the USPTO’s response depends on the type of application and the nature of the impropriety:
- For utility or plant applications filed on or after July 14, 2003, an improper CPA is treated as a Request for Continued Examination (RCE) if possible
- If the improper CPA doesn’t meet RCE requirements, it’s treated as an improper RCE
- For design applications, an improper CPA may be treated as a new application under 37 CFR 1.53(b) in some circumstances
- The Office will not automatically convert an improper CPA to an application under 37 CFR 1.53(b) without extenuating circumstances
The MPEP states: Any request for a CPA filed on or after July 14, 2003, in a utility or plant application is improper, regardless of the filing date of the utility or plant application in which the CPA is filed.
Regarding treatment as an RCE: If a utility or plant application has a filing date on or after June 8, 1995, an improper CPA filed on or after July 14, 2003 is treated as a request for continued examination (RCE) under 37 CFR 1.114.
If the improper CPA doesn’t meet RCE requirements: If the improper CPA does not satisfy the requirements of 37 CFR 1.114 (e.g., the request lacks a submission or the fee under 37 CFR 1.17(e), or the prosecution of the application is not closed), the Office treats the improper CPA as an improper RCE, and the time period set in the last Office action (or notice) will continue to run.
Examiners are instructed to notify supervisory staff if they discover an improper CPA has been processed: If an examiner discovers that an improper or incomplete CPA has been processed as a proper CPA in error, the examiner should immediately notify a supervisory applications examiner (SAE) or other technical support staff within the Technology Center (TC) who will reprocess the CPA and correct the application records as appropriate.
For more information on continued prosecution application, visit: continued prosecution application.
For more information on CPA, visit: CPA.
For more information on patent applications, visit: patent applications.
For more information on RCE, visit: RCE.