MPEP § 1308 — MPEP § 1308
Current through: 2022-07-01

1308-Withdrawal From Issue 
 
 

 
 
 
 
 
 
 
 

 

 
 
 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

 
 
 
 
 

 
 
 
 
 
 
 
 
 
 
 

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 Chapter 1300 

 Section 1308 
 

 
 
 
 
 
 1308 Withdrawal From Issue [R-01.2024]

 
 37 CFR 1.313 Withdrawal from issue. 

 
 (a) Applications may be withdrawn from issue for further action at
 the initiative of the Office or upon petition by the applicant. To request that
 the Office withdraw an application from issue, applicant must file a petition
 under this section including the fee set forth in §
 1.17(h) and a showing of good and sufficient reasons why
 withdrawal of the application from issue is necessary. A petition under this
 section is not required if a request for continued examination under
 §
 1.114 is filed prior to payment of the issue fee. If the
 Office withdraws the application from issue, the Office will issue a new notice of
 allowance if the Office again allows the application.
 

 (b) Once the issue fee has been paid, the Office will not withdraw
 the application from issue at its own initiative for any reason except:
 
 (1) A mistake on the part of the Office;

 (2) A violation of § 1.56 or illegality in
 the application;
 

 (3) Unpatentability of one or more claims; or

 (4) For interference or derivation proceeding.

 
 

 (c) Once the issue fee has been paid, the application will not be
 withdrawn from issue upon petition by the applicant for any reason except:
 
 (1) Unpatentability of one of more claims, which petition must
 be accompanied by an unequivocal statement that one or more claims are
 unpatentable, an amendment to such claim or claims, and an explanation as to
 how the amendment causes such claim or claims to be patentable;
 

 (2) Consideration of a request for continued examination in
 compliance with § 1.114 ; or
 

 (3) Express abandonment of the application. Such express
 abandonment may be in favor of a continuing application.
 

 
 

 (d) A petition under this section will not be effective to withdraw
 the application from issue unless it is actually received and granted by the
 appropriate officials before the date of issue. Withdrawal of an application from
 issue after payment of the issue fee may not be effective to avoid publication of
 application information.
 

 
 
 I. WITHDRAWAL FROM ISSUE AT THE INITIATIVE OF THE APPLICANT 

 A. Prior to the Payment of Issue Fee If the applicant wishes to have an application withdrawn from issue,
 the applicant must petition the Director under 37 CFR 1.313(a) or file a request
 for continued examination (RCE) under 37 CFR 1.114 with a submission
 and the fee set forth in 37 CFR 1.17(e) . A submission may
 be an information disclosure statement ( 37 CFR 1.97 and 1.98 ) or an
 amendment. The RCE practice does not apply to utility or plant applications filed
 before June 8, 1995 and design applications. See MPEP § 706.07(h) ,
 subsections I, II and IX. If an applicant files a RCE (with the fee and a
 submission), the applicant need not pay the issue fee to avoid abandonment of the
 application. Applicants are cautioned against filing a RCE prior to payment of the
 issue fee and subsequently paying the issue fee (before the Office acts on the RCE)
 because doing so may result in issuance of a patent without consideration of the RCE
 (if the RCE is not matched with the application before the application is processed
 into a patent). 
 

 Petitions under 37 CFR 1.313(a) to have an
 application withdrawn from issue should be directed to the Technology Center (TC)
 Director to which the application is assigned (see MPEP
 § 1002.02(c) ). Unless applicant receives a written
 communication from the Office that the application has been withdrawn from issue, the
 issue fee must be timely submitted to avoid abandonment.
 

 Applicant may also file a continuing application on or before the
 day the issue fee is due and permit the parent application to become abandoned for
 failure to pay the issue fee (35 U.S.C. 151) .
 

 B. After the Payment of Issue Fee In May of 2012 the Office launched the Quick Path
 Information Disclosure Statement (QPIDS) Pilot Program. This program allows, under
 specific circumstances, for the submission of an IDS after payment of the issue fee
 but prior to patent grant. Information on the QPIDS Program can be found on the USPTO
 website www.uspto.gov/ patent/initiatives/quick-path-information-
 disclosure-statement-qpids . 
 

 Once the issue fee is paid, withdrawal is permitted only for the
 reasons stated in 37 CFR 1.313(c) . The status of the application at the time the
 petition is filed is determinative of whether the petition is considered under
 37 CFR
 1.313(a) or 37 CFR 1.313(c) . Petitions under
 37 CFR
 1.313(c) to have an application withdrawn after payment of the
 issue fee should be directed to the Office of Petitions (see MPEP
 § 1002.02(b) ).
 

 In addition to the specific reasons identified in 37 CFR
 1.313(c)(1) - (3) applicant should identify
 some specific and significant defect in the allowed application before the
 application will be withdrawn from issue. A petition under 37 CFR 1.313(c) 
 based on the reason specified in 37 CFR 1.313(c)(2) can only be
 filed in utility or plant applications filed on or after June 8, 1995 because the
 request for continued examination (RCE) practice does not apply to these types of
 applications filed before June 8, 1995 and design applications. See
 MPEP §
 706.07(h) , subsections I and IX. Such a petition under
 37 CFR
 1.313(c)(2) along with the petition fee set forth in
 37
 CFR 1.17(h) must include a request for continued examination in
 compliance with 37 CFR 1.114 (e.g., a submission and the fee set forth in
 37
 CFR 1.17(e)) . The continued prosecution application (CPA)
 practice under 37
 CFR 1.53(d) only applies to design applications. See
 MPEP §
 201.06(d) . To withdraw from issue a utility or plant
 application, an applicant may wish to file a petition under 37 CFR
 1.313(c)(2) with a RCE or under 37 CFR
 1.313(c)(3) for the express abandonment of the application in
 favor of a continuing application under 37 CFR 1.53(b) . To withdraw from
 issue a design application, an applicant may file a petition under 37 CFR
 1.313(c)(3) for the express abandonment of the application in
 favor of a continuing application, which could be a CPA.
 

 Any petition filed under 37 CFR 1.313(c) to withdraw an
 application from issue after payment of the issue fee should be clearly marked
 “Petition under 37 CFR 1.313(c) .” Petitions to withdraw an application from
 issue under 37 CFR
 1.313(c) may be:
 

 
 (A) filed via the USPTO patent electronic filing
 system, including an ePetition option;
 

 (B) transmitted by facsimile to (571) 273-0025;

 (C) hand-carried to the Office of Petitions (see
 MPEP §
 502 , subsection III.H for the location); or
 

 (D) mailed to “Mail Stop Petition, Commissioner for Patents, P.O.
 Box 1450, Alexandria, VA 22313-1450” (mailed petitions may not have sufficient
 time to be matched with the application file and decided before the issuance of
 the patent).
 

 
 Applicants are strongly advised to use the USPTO patent electronic
 filing system, transmit by facsimile, or hand-carry the petition to the Office of
 Petitions to allow sufficient time to process the petition, and if the petition can
 be granted, withdraw the application from issue. While a petition to withdraw an
 application from issue may be granted as late as one day prior to the patent issue
 date, it may not be possible to avoid publication and dissemination when the petition
 is granted within 3 weeks of the issue date.
 

 The Office cannot ensure that any petition under 37 CFR 1.313(c) 
 will be acted upon prior to the date of patent grant. See Filing of
 Continuing Applications, Amendments, or Petitions after Payment of Issue
 Fee, Notice, 1221 Off. Gaz. Pat. Office 14 (April 6,
 1999). Since a RCE (unlike a CPA under 37 CFR 1.53(d)) is not any type
 of new application filing, the Office cannot grant a petition to convert an untimely
 RCE to a continuing application under 37 CFR 1.53(b) . Therefore,
 applicants are strongly cautioned to file any desired RCE prior to payment of issue
 fee. In addition, applicants considering filing a RCE after payment of the issue fee
 are strongly cautioned to call the Office of Petitions to determine whether
 sufficient time remains before the patent issue date to consider (and grant) a
 petition under 37 CFR 1.313(c) and what steps are needed to ensure that a
 grantable petition under 37 CFR 1.313(c) is before an
 appropriate official in the Office of Petitions in sufficient time to grant the
 petition before the patent is issued.
 

 Once a petition under 37 CFR 1.313(c)(1) or
 (c)(2) has been granted, the application will be withdrawn
 from issue, the applicant’s submission(s) will be entered, and the application
 forwarded to the examiner for consideration of the submission and further action. If
 an application has been withdrawn from issue after the payment of the issue fee and
 the application is again found allowable, see MPEP § 1306 regarding a request to
 reapply a previously paid issue fee toward the issue fee that is now due in the same
 application.
 

 II. WITHDRAWAL FROM ISSUE AT THE INITIATIVE OF THE OFFICE The Director may withdraw an application from issue under
 37 CFR
 1.313 on their own initiative. See BlackLight Power Inc.
 v. Rogan, 295 F.3d 1269, 1273, 63 USPQ2d 1534, 1537 (Fed. Cir. 2002) (USPTO
 may withdraw a patent application from issuance after the issue fee has been paid.) and
 Harley v. Lehman, 981 F. Supp. 9, 12, 44 USPQ2d 1699, 1702 (D.D.C.
 1997) (adoption of 37 CFR 1.313(b) permitting applications to be withdrawn from
 issue under certain narrow circumstances not directly covered by the statute was not
 unreasonable). 35
 U.S.C. 151 provides that upon payment of the issue fee, “the
 patent shall issue.” Thus, an application cannot be withdrawn from issue after payment
 of the issue fee consistent with 35 U.S.C. 151 unless there has been
 a determination that at least one of the conditions specified at 37 CFR 1.313(b)(1) through
 (4) exist such that the applicant is no longer “entitled to a
 patent under the law” as provided in 35 U.S.C. 151 . See
 BlackLight Power Inc. v. Rogan, 295 F.3d at 1273, 63 USPQ2d at
 1537 (Fed. Cir. 2002) (USPTO is not required to make final determination of
 unpatentability before withdrawing an application from issue pursuant to
 37 CFR
 1.313(b)(3) , which permits the Office to withdraw an application
 after payment of the issue fee on ground of “unpatentability of one or more claims.”);
 Harley v. Lehman, 981 F. Supp. at 11-12, 44 USPQ2d at 1701-02
 (D.D.C. 1997) (Commissioner may adopt rules permitting applications to be withdrawn from
 issue after payment of the issue fee in situations in which the applicant is not
 entitled to a patent under the law); and see Sampson v. Dann, 466 F.
 Supp. 965, 973-74, 201 USPQ 15, 22 (D.D.C. 1978)(Commissioner not authorized to withdraw
 an application from issue after payment of the issue fee on an ad hoc 
 basis, but only in situations which meet the conditions of 37 CFR
 1.313(b) ).
 

 For the designation of authority to withdraw an application from issue
 at the initiative of the USPTO after payment of the issue fee under 37 CFR 1.313(b) 
 see MPEP §§
 1002.02(b) , 1002.02(c) , and 1002.02(p) ).
 

 35 U.S.C.
 151 and 37 CFR 1.313(b) do not authorize the
 USPTO to withdraw an application from issue after payment of the issue fee for any
 reason except :
 

 
 (1) a mistake on the part of the Office:

 (2) a violation of 37 CFR 1.56 or illegality in
 the application;
 

 (3) unpatentability of one or more claims; or

 (4) for interference or derivation. 

 
 See 37 CFR 1.313(b) .
 

 Examples of reasons that do not warrant withdrawing an
 application from issue after payment of the issue fee at the initiative of the Office
 are: 
 

 
 (A) to permit the examiner to consider an information disclosure
 statement; 
 

 (B) to permit the examiner to consider whether one or more claims are
 unpatentable; or 
 

 (C) to permit the applicant to file a continuing application
 (including a CPA). 
 

 
 An application may be removed from the Office of Data Management,
 without it being withdrawn from issue under 37 CFR 1.313(b) , to permit the
 examiner to consider an information disclosure statement or whether one or more claims
 are unpatentable, see MPEP § 1309.02 . Only if such consideration results in a
 determination that one or more claims are unpatentable does 37 CFR 1.313(b) 
 authorize the application to be withdrawn from issue. If uncertainty exists as to
 whether prosecution will in fact be re-opened, the uncertainty must be resolved before
 the application is withdrawn from issue. If there is a question whether an application
 must be withdrawn from issue and no TC Director is available to decide whether
 withdrawal from issue is appropriate and to sign the withdrawal Notice, the application
 should be sent to the Office of Petitions for decision on whether withdrawal from issue
 is appropriate and to effect the withdrawal. 
 

 Any notice withdrawing an application from issue after payment of the
 issue fee must specify which of the conditions set forth in 37 CFR 1.313(b)(1) through
 (4) exists and thus warrants withdrawal of the application from
 issue. Any petition under 37 CFR 1.181 to review the decision
 of a TC Director to withdraw an application from issue after payment of the issue fee
 will be decided by the Deputy Commissioner for Patents Who Oversees the Office of
 Petitions.
 

 If an application has been withdrawn from issue after the payment of
 the issue fee and the application is again found allowable, see MPEP § 1306 regarding
 a request to reapply a previously paid issue fee toward the issue fee that is now due in
 the same application.
 

 Procedure to be followed when an application is withdrawn from issue The procedure set forth below is to be followed when a TC Director
 withdraws an application from issue. This processing is to be done in the Technology
 Center without the need to send the application to the Office of Data Management.
 

 First, determine (via Patent Data Portal) whether the issue fee has
 been paid, and whether the application has been assigned a patent number and issue
 date. 
 

 A. Withdrawal From Issue Before Payment of Issue Fee If the issue fee has not been paid and the deadline
 for payment has not expired:
 

 
 (A) Prepare and mail a “Withdrawal from Issue” letter signed by
 the TC Director to the applicant to effectuate the withdrawal from issue,
 using form paragraph 10.01 . This action will change the status
 of the application, enter the Withdrawal from Issue letter in the
 application file, make it of record in the application file, and forward the
 application to the examiner for prompt appropriate action
 ( e.g., reopen prosecution, initiate interference
 proceedings). 
 

 
 ¶ 10.01 Withdrawal From Issue, Fee Not Paid
In re Application of [1] :Appl. No.: [2] :: WITHDRAWAL FROM ISSUE Filed: [3] : 37 CFR 1.313 For: [4] :
 The purpose of this communication is to inform you that the above identified application is being withdrawn from issue pursuant
 to 37 CFR 1.313 .
 

 The application is being withdrawn to permit reopening of prosecution. The reasons therefor will be communicated to you by
 the examiner.
 

 U.S. Patent and Trademark Office records reveal that the issue fee and the publication fee have not been paid. If the issue
 fee and the publication fee have been submitted, the applicant may request a refund, or may request that the fee be credited
 to a deposit account. However, applicant may wait until the application is either again found allowable or held abandoned.
 If the application is allowed, upon receipt of a new Notice of Allowance and Fee(s) Due, applicant may request that the previously
 submitted issue fee and publication fee be applied toward payment of the issue fee and publication fee in the amount identified
 on the new Notice of Allowance and Fee(s) Due. If the application is abandoned, applicant may request either a refund or a
 credit to a specified Deposit Account.
 

 The application is being forwarded to the examiner for action.

 ______________________

 [5] 

 Director,

 Technology Center [6] 

 [7] 

 Examiner Note:
 
 1. This letter is printed with the USPTO letterhead and must be signed by the TC Director.

 2. DO NOT use this form letter if the issue fee and publication fee have been paid. 

 3. In bracket 7, insert the correspondence address of record.
 
 
 B. Withdrawal From Issue After Payment of Issue Fee If the issue fee has been paid:
 

 
 (A) Prepare a “Notice of Withdrawal From Issue under
 37 CFR
 1.313(b) ” indicating that the application has been
 withdrawn from issue.
 

 (B) If the application has been assigned a patent number and
 issue date: 
 
 (1) Notify the Director of the Office of Data Management
 and the persons involved in prosecution of the application via email
 to inform them that the application has been withdrawn from issue.
 

 (2) The “Notice of Withdrawal From Issue under
 37 CFR 1.313(b) ” letter to applicant must be
 signed, date stamped, and entered into the file wrapper prior to the
 issue date to be effective to withdraw the application from issue.
 

 (3) The Office of Data Management updates the application
 status to remove the patent issue data and place the application in
 status 95.
 

 
 

 (C) Mail and enter the “Notice of Withdrawal From Issue under
 37 CFR
 1.313(b) ” and the “Withdrawal from Issue of”
 memorandum, if applicable, in the application file and make it of record in
 the application file, which will update the application status code.
 

 (D) Forward the application to the examiner for prompt
 appropriate action ( e.g., reopen prosecution, initiate
 interference proceedings).
 

 III. HANDLING OF APPLICATIONS THAT CONTAIN AN EXAMINER'S AMENDMENT When an application is withdrawn from issue, either at the
 initiative of the applicant or by the Office, and the application contains an examiner’s
 amendment, the claims as amended by the examiner’s amendment are the claims subject to
 further examination.
 

 
 1308.01 Rejection After Allowance [R-10.2019]

 A claim noted as allowable shall thereafter be rejected only with the
 approval of the primary examiner. Great care should be exercised in authorizing such
 rejection. See MPEP §
 706.04 .
 

 When a new rejection is discovered, which obviously is applicable to
 one or more of the allowed claims in an application in issue, a memorandum is addressed
 to the Technology Center (TC) Director, requesting that the application be withdrawn
 from issue for the purpose of applying the new grounds of rejection. This memorandum
 should cite the rationale for the new rejection, including any new reference(s), and, if
 need be, briefly state its application. If the examiner’s proposed action is not
 approved, the memorandum requesting withdrawal from issue should not be placed in the
 file. 
 

 If the request to withdraw from issue is approved, the TC Director
 should withdraw the application from issue as explained in MPEP § 1308 . After
 the TC Director has withdrawn the application from issue, the examiner will prepare an
 Office action stating that the application has been withdrawn from issue, citing any new
 reference(s), and rejecting the claims based upon the approved new grounds of rejection.
 See MPEP §
 706.07 for guidance on making this rejection final.
 

 If the issue fee has already been paid and prosecution is reopened, the
 applicant may request a refund or request that the fee be credited to a deposit account.
 However, applicant may wait until the application is either found allowable or held
 abandoned. If allowed, upon receipt of a new Notice of Allowance, applicant may request
 that the previously submitted issue fee be applied (the Notice of Allowance will reflect
 an issue fee amount that is due and the issue fee that was previously paid). See
 MPEP §
 1306 regarding request to reapply a previously paid issue fee
 toward the issue fee that is now due in the same application. If abandoned, applicant
 may request refund or credit to a deposit account.
 

 

 
 1308.02 For Interference or Derivation Purposes [R-07.2015]

 It may be necessary to withdraw a case from issue for reasons connected
 with an interference or derivation. For the procedure to be followed, see
 MPEP Chapter
 2300 .
 

 

 
 1308.03 Quality Review for Examined Patent Applications [R-01.2024]

 The Office of Patent Quality Assurance (OPQA) administers a Quality
 Assurance program for reviewing the quality of the examination of patent applications.
 The general purpose of the Quality Assurance program is to collect patent examination
 quality data used to report patent examination quality metrics and to inform decisions
 for continuous patent quality improvement.
 

 As part of OPQA's Quality Assurance program, a quality review is
 conducted by Review Quality Assurance Specialists on a randomly selected sample of
 Office actions on the merits mailed throughout the fiscal year. The sample is computer
 generated under the office-wide computer system, which selects a predetermined number
 mailed Office actions per year for review, which number is representative, in quantity
 and technology, of all Office actions on the merits mailed in the fiscal year. A
 subsample of the selected Office actions are both reviewed and searched by the Review
 Quality Assurance Specialists. 
 

 The Review Quality Assurance Specialist independently reviews each
 sampled Office action assigned to their docket to determine the action's compliance with
 patent statutes. The Review Quality Assurance Specialist may consult with, discuss, or
 review an application with any other reviewer or professional in the examining corps,
 except the professional who acted on the application. The review will, with or without
 additional search, provide the examining corps personnel with information which will
 assist in improving the quality of issued patents. The Quality Assurance program shall
 be used as an educational tool to aid in identifying best practices and problem areas in
 the examining Technology Centers (TCs). Quality reviews, for statutory and/or other
 compliance, may also be performed in other appropriate areas. All completed reviews are
 forwarded to the examining TCs or art units for consideration.
 

 Whenever a completed review has been forwarded to the TC under the
 Quality Assurance program, the TC should promptly decide what action is to be taken
 in the application and inform the Office of Patent Quality Assurance of the nature of
 that action.
 

 If, during any quality review process, it is determined that one or
 more claims of an allowed application are unpatentable, the prosecution of the
 application will be reopened. The Office action should contain, as an opening, form
 paragraph 13.04 .
 

 ¶ 13.04 Reopen Prosecution - After Notice of Allowance

 Prosecution on the merits of this application is reopened on claim [1] considered unpatentable for the reasons indicated below:
 

 [2] 

 Examiner Note:
 
 1. This paragraph should be used when a rejection is made on any previously allowed claim(s) which for one reason or another
 is considered unpatentable after the Notice of Allowance (PTOL-85) has been mailed. 
 

 2. Make appropriate rejection(s) as in any other action.

 3. In bracket 1, identify claim(s) that are considered unpatentable.

 4. In bracket 2, state all appropriate rejections for each claim considered unpatentable.
 
 

 If the issue fee has already been paid in the application, the
 application must be withdrawn from issue, and the action should contain not only the
 above quoted paragraph, but also form paragraph 13.05 .
 

 ¶ 13.05 Reopen Prosecution - Vacate Notice of Allowance

 Applicant is advised that the Notice of Allowance mailed [1] is vacated. If the issue fee has already been paid, applicant may request a refund or request that the fee be credited to
 a deposit account. However, applicant may wait until the application is either found allowable or held abandoned. If allowed,
 upon receipt of a new Notice of Allowance, applicant may request that the previously submitted issue fee be applied. If abandoned,
 applicant may request refund or credit to a specified Deposit Account.
 

 Examiner Note:
 
 1. This form paragraph must be used when the prosecution is reopened after the mailing of the Notice of Allowance.

 2. In bracket 1, insert date of the Notice of Allowance.
 
 

 Quality review forms and papers are not to be
 included with Office actions, nor should such forms or papers be retained in the file of
 any reviewed application whether or not prosecution is to be reopened. The application
 record should not indicate that a quality review has been
 conducted.
 

 

 [top] 

 

 

 
 

 
 

 

 

 

 
 
 
 1301-Substantially Allowable Application, Special 

 1302-Preparation of an Application for Allowance 
 1302.01-General Review of Disclosure 

 1302.02-Requirement for a Rewritten Specification 

 1302.03-Notice of Allowability 

 1302.04-Examiner’s Amendments and Changes 
 1302.04(a)-Title of Invention 

 1302.04(b)-[Reserved] 

 1302.04(c)-Cancellation of Claims to Nonelected Invention 

 1302.04(d)-Cancellation of Claim Lost in Interference 

 1302.04(e)-Cancellation of Rejected Claims Following Appeal 

 1302.04(f)-[Reserved] 

 1302.04(g)-Identification of Claims 

 1302.04(h)-Rejoinder of Claims 

 
 

 1302.05-Correction of Drawing 

 1302.06-Prior Foreign Application 

 1302.07-[Reserved] 

 1302.08-Interference Search 

 1302.09-Classification, Print Figure, and Other Notations 

 1302.10-Issue Classification Notations 

 1302.11-[Reserved] 

 1302.12-Listing of References 

 1302.13-Signing 

 1302.14-Reasons for Allowance 

 
 

 1303-Notice of Allowance 
 1303.01-Amendment Received After Allowance 

 1303.02-Undelivered 

 1303.03-Not Withheld Due to Death of Inventor 

 
 

 1304-Amendments After D-10 Notice 
 1304.01-Withholding From Issue of “Secrecy Order” Applications 

 
 

 1305-Jurisdiction 

 1306-Issue Fee 
 1306.01-Deferring Issuance of a Patent 

 1306.02-Simultaneous Issuance of Patents 

 1306.03-Practice After Payment of Issue Fee; Receipt of Issue Notification 

 
 

 1307-[Reserved] 

 1308-Withdrawal From Issue 
 1308.01-Rejection After Allowance 

 1308.02-For Interference or Derivation Purposes 

 1308.03-Quality Review for Examined Patent Applications 

 
 

 1309-Issue of Patent 
 1309.01-[Reserved] 

 1309.02-“Printer Rush” Cases 

 
 

 

 

 
 

 
 
 

 
 

 

 
 
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 03/09/2026 20:50:33