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1441.01 Protest in Reissue Applications [R-2] - 1400 Correction of Patents
1441.01 Protest in Reissue Applications [R-2]
>Since reissue applications are not published under 35 U.S.C. 122, pursuant to 37 CFR 1.291(a)(1), a protest may be filed throughout the pendency of a reissue application prior to the date of mailing of a notice of allowance subject to the timing constraints of the examination, as set forth in MPEP § 1901.04.<
A protest with regard to a reissue application should be filed within the 2-month period following the announcement of the filing of the reissue application in the Official Gazette. If the protest of a reissue application cannot be filed within the 2-month delay period, the protest can be submitted at a later time. Where the protest is submitted after the 2-month period, no petition for entry of the protest under 37 CFR 1.182 is needed with respect to the protest being submitted after the 2 months >,< unless a final rejection has been issued or prosecution on the merits has been closed for the reissue application.
Where the protest is submitted after the 2-month period, the protest may be received after the first Office action by the examiner, since reissue applications are taken up "special." Once the first Office action is mailed (after the 2-month period), a member of the public may still submit pertinent information in the form of a protest under 37 CFR 1.291(a), and the examiner will consider the information submitted in the next Office action, to the extent that such consideration is appropriate. See MPEP § 1901.04 and § 1901.06 for the timeliness and content criteria as to when a protest is considered.
The Technology Center (TC) to which the reissue application is assigned is listed in the Official Gazette notice of filing of the reissue application. Accordingly, the indicated TC should retain the reissue application file for 2 months after the date of the Official Gazette notice before transferring the reissue application under the procedure set forth in MPEP § 903.08(d). >(For IFW processing, see IFW Manual.<
The publication of a notice of a reissue application in the Official Gazette should be done prior to any examination of the reissue application. If an inadvertent failure to publish notice of the filing of the reissue application in the Official Gazette is recognized later in the examination, action should be taken to have the notice published as quickly as possible, and action on the reissue application may be delayed until 2 months after the publication, allowing for any protests to be filed.
See MPEP § 1901.06 for general procedures on examiner treatment of protests in reissue applications.
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