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2666.50 Examiner Issues Notice of Defective Paper in - 2600 Optional Inter Partes Reexamination
2666.50 Examiner Issues Notice of Defective Paper in Inter Partes Reexamination [Added R-2]
Even if the substance of a submission is complete, the submission can still be defective, i.e., an "informal submission." Defects in the submission can be, for example:
(A) The paper filed does not include proof of service;
(B) The paper filed is unsigned;
(C) The paper filed is signed by a person who is not of record; or
(D) The amendment filed by the patent owner does not comply with 37 CFR 1.530(d)-(j).
Where a submission made is defective (informal), form PTOL-2069 is used to provide notification of the defects present in the submission. In many cases, it is only necessary to check the appropriate box on the form and fill in the blanks. However, if the defect denoted by one of the entries on form PTOL-2069 needs further clarification (such as the specifics of why the amendment does not comply with 37 CFR 1.530(d)-(j)), the additional information should be set forth on a separate sheet of paper which is then attached to the form PTOL-2069.
The defects identified in (A) through (D) above are specifically included in form PTOL-2069. If the submission contains a defect other than those specifically included on the form, the "Other" box on the form is to be checked and the defect explained in the space provided for the explanation. For example, a response might be presented on easily erasable paper, and thus, a new submission would be needed.
Where both the patent owner response and the third party comments are defective, a first form PTOL-2069 should be completed for the patent owner (setting forth the defects in the patent owner response), and a second form PTOL-2069 completed for the third party requester (setting forth the defects in the third party requester's comments). A copy of both completed forms would then be sent to all parties.
The Office action's two month period for response usually will have expired by the time the examiner notes the defects and issues a letter. Accordingly, a time period of 30-days or one month, whichever is longer, will be set for correction of the defect(s). The patent owner may request an extension of time to correct the defect(s) under 37 CFR 1.956. The third party requester, however, is barred from requesting an extension of time by statute. 35 U.S.C. 314(b)(2).
If the defect in the patent owner response or the third party requester comments is limited to a problem with the signature, claim format, or some other obvious defect (easily corrected), and such is noted by the staff of the Office of Patent Legal Administration (OPLA) processing the papers, then the staff of OPLA may, in some instances, issue form PTOL-2069 to notify parties of the defect, and obtain a response to the form, prior to forwarding the case to the examiner. Otherwise, the responsibility is with the examiner to obtain the needed correction of the defects in the papers, which defects are either identified to the examiner by the staff of OPLA in an informal memo, or noted independently by the examiner.
