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112 rejections for omitted essential elements/steps
Posted by Anonymous . updated on 2/26/2009
Hi. Has anyone recently seen an increase in 112 rejections for omitted essential elements/steps? People here haven't seen one in over 5 yrs. Now we've gotten ~10 in the last 6 months. Is something up at the USPTO? Thanks.
Answers (3)
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TataBox...
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Yes. Very common within the past year.
Regards,
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JimIvey
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I've only seen the rejection once recently. Admittedly I haven't read the blogspot thingy, but I intend to before long.
I looked up the MPEP -- it said that, when the applicant indicates in the Spec that this or that feature is essential to the invention, it must be in the claims.
I successfully challenged that rejection by:
(1) asking the examiner to identify the teaching in the Spec that indicated that the applicant considered the element essential, reminding the examiner that the applicant, not the examiner, must consider the feature essential.
(2) showing that the Spec taught a reduced-feature embodiment (although didn't specifically teach absence of the particular feature found essential by the examiner).
and (3) explaining that the described technology would in fact function without the feature, albeit sub-optimally.
Next action made no mention of that feature as being essential.
Regards.
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