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602.03 Defective Oath or Declaration [R-7] - 600 Parts, Form, and Content of Application
602.03 Defective Oath or Declaration [R-7]
In the first Office action the examiner must point out every deficiency in a declaration or oath and require that the same be remedied. Applicant may be informed of deficiencies in the declaration or oath by form paragraphs 6.05 and 6.05.01 - 6.05.20.
The following form paragraph 6.05 must be used to introduce one or more of Form Paragraphs 6.05.01 - 6.05.20, which explain errors in the oath or declaration. One or more of the following form paragraphs may be used to notify applicant of the objections to the oath or declaration due to a missing "reviewed and understands" statement, "original and first" statement, duty to disclose statement, or if the oath or declaration is not in permanent ink. See MPEP § 602 for defects in the execution of the oath or declaration, failure to properly reference to an earlier foreign application, or a failure to properly identify the application papers. See MPEP § 602.04 for a defective foreign executed oath and MPEP § 602.04(a) for an oath with an improperly attached ribbon.
¶ 6.05 Oath or Declaration Defective, HeadingThe oath or declaration is defective. A new oath or declaration in compliance with 37 CFR 1.67(a) identifying this application by application number and filing date is required. See MPEP §§ 602.01 and 602.02.
The oath or declaration is defective because:
Examiner Note:
1. One or more of the appropriate form paragraphs 6.05.01 to 6.05.20 must follow this paragraph.
2. If none of the form paragraphs apply, then an appropriate explanation of the defect should be given immediately following this paragraph.
¶ 6.05.05 "Reviewed and Understands" Statement OmittedIt does not state that the person making the oath or declaration has reviewed and understands the contents of the specification, including the claims, as amended by any amendment specifically referred to in the oath or declaration.
Examiner Note:
This paragraph must be preceded by form paragraph 6.05.
¶ 6.05.06 Original and First OmittedIt does not state that the person making the oath or declaration believes the named inventor or inventors to be the original and first inventor or inventors of the subject matter which is claimed and for which a patent is sought.
Examiner Note:
This paragraph must be preceded by form paragraph 6.05.
**> ¶ 6.05.07 Duty To Disclose Not Properly AcknowledgedIt does not state that the person making the oath or declaration acknowledges the duty to disclose to the Office all information known to the person to be "material to patentability as defined in 37 CFR 1.56."
Examiner Note:
1. This paragraph must be preceded by form paragraph 6.05.
2. Oaths or declarations acknowledging a duty to disclose information "material to the examination of the application in accordance with 37 CFR 1.56(a)," as was required by 37 CFR 1.63(b)(3) prior to March 16, 1992, are no longer acceptable. See 1327 OG 112 (February 12, 2008).
< ¶ 6.05.15 Not in Permanent InkThe [1] is not in permanent ink, or its equivalent in quality, as required under 37 CFR 1.52(a)(1)(iv).
Examiner Note:
1. In bracket 1, insert either signature or oath/declaration.
2. This paragraph must be preceded by form paragraph 6.05.
3. If other portions of the disclosure are not in permanent ink, use form paragraph 6.32.
When an application is otherwise ready for issue, an examiner with full signatory authority may waive the following minor deficiencies:
Minor deficiencies in the body of the oath or declaration where the deficiencies are self-evidently cured in the rest of the oath or declaration. In re Searles, 422 F.2d 431, 437, 164 USPQ 623, 628 (CCPA 1970).
If such a deficiency is waived, the examiner with full signatory authority should write in the margin of the declaration or oath a notation why the deficiency was waived, indicate that the application is ready for issue, and provide his or her initials and the date. For Image File Wrapper (IFW) processing, see IFW Manual.
Of course, requirements of the statute, e.g., that the applicant state his or her citizenship or believes himself or herself to be the original and first inventor or that the oath be administered before a person authorized to administer oaths or that a declaration pursuant to 35 U.S.C. 25 or contain the language required therein, cannot be waived.
If the defect cannot be waived, form paragraph 6.46 should be used when the application is allowable.
¶ 6.46 Application Allowed, Substitute Declaration NeededApplicant is now required to submit a substitute declaration or oath to correct the deficiencies set forth [1]. The substitute oath or declaration must be filed within the THREE MONTH shortened statutory period set for reply in the "Notice of Allowability" (PTO-37). Extensions of time may NOT be obtained under the provisions of 37 CFR 1.136. Failure to timely file the substitute declaration (or oath) will result in ABANDONMENT of the application. The transmittal letter accompanying the declaration (or oath) should indicate the date of the "Notice of Allowance" (PTOL-85) and the application number in the upper right hand corner.
Examiner Note:
In the bracket, insert appropriate information, e.g., --in this communication--, --in the Office action mailed ________--.
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