MPEP § 2268
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Upon failure of the applicant to prosecute the application within six months after any action therein, of which notice has been given or mailed to the applicant, or within such shorter time, not less than thirty days, as fixed by the Director in such action, the application shall be regarded as abandoned by the parties thereto, unless it be shown to the satisfaction of the Director that such delay was unavoidable.
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Pursuant to 37 CFR 1.550(d), the prosecution of an ex parte reexamination proceeding is terminated if the patent owner fails to file a timely and appropriate response to any Office action or any written statement of an interview required under 37 CFR 1.560(b). An ex parte reexamination prosecution terminated under 37 CFR 1.550(d) can be revived if the delay in response by the patent owner (or the failure to timely file the interview statement) was unavoidable in accordance with 37 CFR 1.137(a), or unintentional in accordance with 37 CFR 1.137(b).
The failure to timely file a statement pursuant to 37 CFR 1.530 or a reply pursuant to 37 CFR 1.535, however, would not (under ordinary circumstances) constitute adequate basis to justify a showing of unavoidable/unintentional delay regardless of the reasons for the failure, since failure to file a statement or reply does not result in a "termination" of the reexamination prosecution, to which 37 CFR 1.137 is directed.
All petitions in reexamination proceedings to accept late papers and to revive the proceedings will be decided in the Office of Patent Legal Administration.
The unavoidable delay provisions of 35 U.S.C. 133 are imported into, and are applicable to, ex parte reexamination proceedings by 35 U.S.C. 305. See In re Katrapat, 6 USPQ2d 1863 (Comm’r Pat. 1988). Accordingly, the Office will consider, in appropriate circumstances, a petition showing unavoidable delay under 37 CFR 1.137(a) where untimely papers are filed subsequent to the order for reexamination. Any such petition must provide an adequate showing of the cause of unavoidable delay, including the details of the circumstances surrounding the unavoidable delay and evidence to support the showing. Additionally, the petition must be accompanied by the petition fee set forth in 37 CFR 1.17(l) and a proposed response to continue prosecution (unless it has been previously filed).
The unintentional delay fee provisions of 35 U.S.C. 41(a)(7) are imported into, and are applicable to, all ex parte reexamination proceedings by section 4605 of the American Inventors Protection Act of 1999. The unintentional delay provisions of 35 U.S.C. 41(a)(7) became effective in reexamination proceedings on November 29, 2000. Accordingly, the Office will consider, in appropriate circumstances, a petition showing unintentional delay under 37 CFR 1.137(b) where untimely papers are filed subsequent to the order for reexamination. Any such petition must provide a verified statement that the delay was unintentional, a proposed response to continue prosecution (unless it has been previously filed), and the petition fee set forth in 37 CFR 1.17(m).
Reconsideration may be requested of a decision dismissing or denying a petition under 37 CFR 1.137(a) or (b) to revive a terminated reexamination prosecution. The request for reconsideration must be submitted within one (1) month from the mail date of the decision for which reconsideration is requested. An extension of time may be requested only under 37 CFR 1.550(c); extensions of time under 37 CFR 1.136 are not available in reexamination proceedings. Any reconsideration request which is submitted should include a cover letter entitled "Renewed Petition under 37 CFR 1.137(a) " (for a petition based on unavoidable delay) or "Renewed Petition under 37 CFR 1.137(b) " (for a petition based on unintentional delay).
See also MPEP § 711.03(c), subsection III, for a detailed discussion of the requirements of petitions filed under 37 CFR 1.137(a) and (b).