MPEP § 2668
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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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If the patent owner in an inter partes reexamination proceeding fails to file a timely and appropriate response to any Office action and no claims are allowable, then pursuant to 37 CFR 1.957(b), the prosecution of the reexamination proceeding is terminated, and a certificate under 37 CFR 1.997 is issued canceling all claims of the patent.
An inter partes reexamination prosecution terminated under 37 CFR 1.957(b) can be revived if the delay in response by the patent owner was unavoidable in accordance with 37 CFR 1.137(a), or unintentional in accordance with 37 CFR 1.137(b).
If the patent owner in an inter partes reexamination proceeding fails to file a timely and appropriate response to any Office action and at least one claim is allowable, then pursuant to 37 CFR 1.957(c), the proceeding continues but is limited to the claim(s) found allowable at the time of the failure to respond (i.e., in the Office action).
Rejected claims terminated under 37 CFR 1.957(c) can be revived if the delay in response by the patent owner was unavoidable in accordance with 37 CFR 1.137(a), or unintentional in accordance with 37 CFR 1.137(b).
All petitions in reexamination proceedings to accept late papers and revive will be decided in the Office of Patent Legal Administration (OPLA).
The unavoidable delay provisions of 35 U.S.C. 133 are imported into, and are applicable to, reexamination proceedings by 35 U.S.C. 305 and 314. 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 by the patent owner 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 a proposed response to continue prosecution (unless it has been previously filed) and by the petition fee required by 37 CFR 1.17(l).
The unintentional delay fee provisions of 35 U.S.C. 41(a)(7) are imported into, and are applicable to, any reexamination proceeding by Sec. 4605(a) of the American Inventors Protection Act of 1999. Accordingly, the Office will consider, in appropriate circumstances, a petition showing unintentional delay under 37 CFR 1.137(b) where untimely papers are filed by the patent owner 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 required by 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 1.956; 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 an "unavoidable" petition) or "Renewed Petition under 37 CFR 1.137(b) " (for an "unintentional" petition).
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 37 CFR 1.137(b).