715.03(a)(ii)(D) Outstanding Refusals and/or Requirements Must Be Continued, Time for Appeal Has Expired, and No Notice of Appeal Has Been Filed – Abandon for Incomplete Response
If (1) the examining attorney is not persuaded by the request for reconsideration, (2) the applicant's response does not meet the criteria in 37 C.F.R. §2.65(a)(2) for granting additional time to complete the response, (3) there is no time remaining in the six-month response period, and (4) no notice of appeal has been filed, the examining attorney must hold the application abandoned due to incomplete response. The examining attorney must deny the request for reconsideration by issuing an “Abandoned Due to Incomplete Response” action. See TMEP §718.02(a) for information about processing an incomplete response to a partial final refusal or requirement.
If the examining attorney denies the request for reconsideration and holds the application abandoned for incomplete response, the applicant may file a petition to the Director under 37 C.F.R. §2.146 to reverse the examining attorney’s holding of abandonment. However, the Director will reverse the examining attorney’s action on petition only where 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); TMEP §1713.01. The unintentional delay standard of 37 C.F.R. §2.66 does not apply in this situation. See TMEP §§1713.02, 1714.01(f)(ii)(A).