When can an examiner make a rejection based on prosecution laches?

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.

An examiner should exercise caution when considering a rejection based on prosecution laches. According to MPEP 2190:

“An examiner should obtain approval from the TC Director before making a rejection on the grounds of prosecution history laches.”

This requirement ensures that such rejections are made only in egregious cases of unreasonable and unexplained delay in prosecution, typically involving multiple examples of repetitive filings that demonstrate a pattern of unjustified delayed prosecution.