Can the USPTO Require Replacement Drawings Subsequent to the Notice of Allowance?
Some Applicants for US Patents represent themselves and, on occasion, the pro se Applicant successfully argues to the Examiner that the Application’s claims are patentable.
Other Applicants are represented by patent professionals and (due to various national and international deadlines) a complete but not pristine Patent Application that obtains a filing date is filed in the USPTO.
For some Patent Applications, Examiners issue a Notice of Allowance where the Issue Fee must be paid by a specified date. After the Examiner’s issues the Notice of Allowance, the Application is transferred to the Publications Branch of the USPTO. It is here that a replacement drawing may be required.
Code of Federal Regulations for Utility Patent Application Drawings
37 Code Federal Regulations 1.84 (a) (1), in part, reads, “37 C.F.R. 1.84 Standards for drawings. (1) Black ink. Black and white drawings are normally required. India ink, or its equivalent that secures solid black lines, must be used for drawings”.
After receiving the allowed Patent Application from the Examiner, the Publications Branch can require correction of a part of the Application, such as the Drawings. For instance, when Applicants have not filed the required black and white line drawings in the as-filed Application, but rather used photographs or non-line computer generated images to obtain a filing date.
Most of the time, the drawings are replaced before the Notice of Allowance is granted. However, occasionally, the black and white line drawings are required after the Notice of Allowance and before the grant of the Patent.
Replacement Drawings for Utility Patent Applications
A part of the Notice for Corrected Application Papers looks something like the example below.
In the Notice to File Correction Application Papers, the Publication Branch of the USPTO requires replacement black and white line drawings before the Patent Application will be granted. One or more as-filed figures need to be replaced by black and white line drawings.
To properly respond to the Notice to File Correction Application Papers – Drawings, the Applicant must file the required black and white line drawings within the allotted time identified on the Notice to File Correction Application Papers.
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