What is the significance of the “basic thrust of the rejection” in determining new grounds of rejection?
The concept of the “basic thrust of the rejection” is crucial in determining whether a rejection constitutes a new ground of rejection. According to MPEP 1207.03(a):
“There is no new ground of rejection when the basic thrust of the rejection remains the same such that an appellant has been given a fair opportunity to react to the rejection.”
This principle is based on the court’s decision in In re Kronig, which emphasized that:
“[T]he ultimate criterion of whether a rejection is considered ‘new’ * * * is whether appellants have had fair opportunity to react to the thrust of the rejection.”
The “basic thrust of the rejection” refers to the fundamental reasoning and evidence supporting the rejection. If this remains unchanged, even if there are minor modifications to the rejection (such as citing different portions of the same reference or changing the order of references), it typically does not constitute a new ground of rejection.
However, if the modifications to the rejection introduce new reasoning or evidence that the applicant has not had a fair opportunity to address, it may be considered a new ground of rejection. The key is ensuring that the applicant has had a fair chance to respond to the essential arguments and evidence supporting the rejection.
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