When can a final rejection be withdrawn in a patent application?
A final rejection in a patent application can be withdrawn under specific circumstances.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a final rejection that is not premature has been entered in an application/reexamination proceeding, it should not be withdrawn at the applicant’s or patent owner’s request except on a showing under 37 CFR 1.116(b).”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