3

If my application was rejected, can I write a new application based on the same idea, or it would be rejected because the old application was considered as a prior art?

1

If my application was rejected, can I write a new application based on the same idea, or it would be rejected because the old application was considered as a prior art?

Depends on the dates. If the old application was published, and more than a year has passed from its publication, you can't file anew and it will be considered as prior art. (I'm just blatantly assuming we're talking about the U.S. here since you didn't specify otherwise).

This is to not say that you ever should file anew. Why would you do that? Did the examiner have a good reason for rejecting? If so, you have to move on from that idea. If not, you have to keep fighting until you are taken final and beyond (RCE and repeat if you need to amend, or appeal if your claims are proper). If time limits permit you should consider a telephonic interview with examiner and try to understand his point and explain yours. Sometimes one-on-one interaction really helps to clarify positions and identify potentially patentable subject matter in an application.

The way I think of it is, every examiner has a certain number of times he/she has to be proved wrong before he/she issues a patent. This is almost always at least 1 and rarely more than 3. So why would you ever want to start over?

Your Answer

By clicking “Post Your Answer”, you agree to our terms of service, privacy policy and cookie policy

Not the answer you're looking for? Browse other questions tagged or ask your own question.