2812.04 Termination Due to Defective/Improper Request or Corrected Request [R-11.2013]
If, in response to a Notice of Noncompliant Supplemental Examination Request (37 CFR 1.610(d) ), a proper corrected request is not filed or is not timely received, or if the corrected request is defective/improper (for example, if the corrected request does not address all of the defects set forth in the notice, or introduces a new defect which was not present in the original request), the request will not be granted a filing date, and the processing of the request will be terminated.
A single failure to comply with the Notice of Noncompliant Supplemental Examination Request (37 CFR 1.610(d) ) will ordinarily result in the request not being granted a filing date. 37 CFR 1.610(d) provides that "[i]f the patent owner does not timely comply with the notice, the request for supplemental examination will not be granted a filing date." Thus, absent extraordinary circumstances, the patent owner will be given only one opportunity to correct the original request.
When terminating the request, the Office will mail a Notice of Termination, which will notify the patent owner of the defects found in the corrected request, or of the lack of receipt, or timely receipt, of a corrected request. The fee for reexamination as set forth in 37 CFR 1.20(k)(2), if paid, will be refunded. The control number assigned to the request will be retained, but the request will not be granted a filing date, and will not be further considered. The request papers will not be returned, but will remain unavailable to the public. See MPEP § 2813, subsection II.
If, after receiving a Notice of Termination, the patent owner still desires to request supplemental examination of the patent, the patent owner may file a new request for supplemental examination, which is complete and includes the missing information identified by the Office in the notice.