TMEP 1713.01: Standard of Review

October 2017 Edition of the TMEP

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1713.01    Standard of Review

Under 37 C.F.R. §2.65(a), an application may become abandoned when an applicant’s response, although received within the six-month response period, is incomplete.  See TMEP §§718.03–718.03(b) regarding incomplete responses.

When an examining attorney holds an application abandoned because the applicant’s response is incomplete, the applicant may petition the Director to reverse the holding under 37 C.F.R. §2.146.  See TMEP §718.02(a) regarding partial abandonment for failure to respond completely to a final refusal or final requirement that is expressly limited to only certain goods/services/class(es) and TMEP §718.03(a) for failure to respond completely in all other situations.

However, the Director will reverse the examining attorney’s holding of abandonment only if there has been clear error or an abuse of discretion or, in rare cases, where a petitioner can show that it has substantially complied with the requirements of the statute or rules. In re P.T. Polymindo Permata, 109 USPQ2d 1256, 1257 (Dir USPTO 2013); In re GTE Educ. Servs., 34 USPQ2d 1478, 1479-80 (Comm’r Pats. 1994); In re Legendary, Inc., 26 USPQ2d 1478, 1479 (Comm’r Pats. 1992). Note:  The "unintentional delay" standard for reviving abandoned applications pursuant to 37 C.F.R §2.66 does not apply to applications held abandoned because a response was deemed incomplete under 37 C.F.R. §2.65(a). See TMEP §1714.01(f)(ii)(A).