1714.01(f)(ii)(A) Examining Attorney’s Holding of Abandonment for Failure to File Complete Response to Office Action
The unintentional delay standard of 37 C.F.R. §2.66 does not apply to an application that is abandoned for filing an incomplete response to an examining attorney’s Office action. Incomplete responses to examining attorneys’ Office actions are governed by 37 C.F.R. §2.65(a)-(a)(2), which gives the examining attorney discretion to grant an applicant 30 days, or to the end of the six-month response period set forth in the previous Office action, whichever is longer, to perfect the response pursuant to 37 C.F.R. §2.65(a)(2). If the examining attorney holds the application abandoned for failure to file a complete response to an Office action, the applicant may file a petition to the Director to review the examining attorney’s action under 37 C.F.R. §2.146. The Director will reverse the examining attorney’s action only if there is clear error or an abuse of discretion. See TMEP §1713.
A request for reconsideration of a final refusal ( see TMEP §§715.03–715.03(c) ) that does not meet all legal requirements and is not accompanied by a proper notice of appeal will be treated as an incomplete response to the final Office action. If the examining attorney denies the request for reconsideration, the time for filing a notice of appeal runs from the issuance date of the final action. TMEP §715.03(c). If the time for appeal has expired and the application is abandoned for an incomplete response, the applicant may not file a petition to revive under 37 C.F.R. §2.66. The applicant may file a petition to the Director to review the examining attorney’s action under 37 C.F.R. §2.146. See TMEP §1713 regarding petitions to reverse a holding of abandonment for an incomplete response.