When can a final rejection be withdrawn in a patent application?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.

A final rejection in a patent application can be withdrawn under specific circumstances. According to MPEP 706.07(e):

“Once a final rejection that is not premature has been entered in an application/reexamination proceeding, it should not be withdrawn at the applicant’s or patent owner’s request except on a showing under 37 CFR 1.116(b).”

However, the examiner may withdraw the rejection of finally rejected claims if:

• New facts or reasons convince the examiner that the previously rejected claims are allowable or patentable.
• A new ground of rejection needs to be applied, but this should be limited to situations where a new reference fully meets at least one claim or meets it except for obvious differences.

It’s important to note that withdrawing a final rejection to apply subsidiary or cumulative references is not recommended.