When examiners make an obvious and innocent clerical error, applicants take it in stride. For example an applicant will respond “The office action mistakenly identifies Claim 7 as an independent claim and relies on Baker reference as 102 prior art. This is an obvious clerical error by the examiner as Claim 7 is a dependent claim. Thus, for this response, applicant will respond as if the examiner had grouped Claim 7 with the other dependent claims subject to the 103 rejection.”
But what happens if an applicant makes an obvious and innocent clerical error?
For example, what if an amendment add words to Claim 1, and the added words are properly underlined. However the applicant fails to identify the claim as “Presently Amended”, or if the applicant mistakenly inserts “Original” instead of “Presently amended”.
The PTO employs clerical workers who spot the error and then issue a “Notice of Non-Compliant Response”, giving the applicant 30 days to correct the obvious error and file replacement papers. The clerical workers will then review again, before passing to the examiner.
If the PTO wants to employ these workers, then I suggest the worker should just enter a paper noting that Claim 1 has been amended as indicated by the underlining, but the identifier “Presently Amended” has been omitted. Then let the response go directly to the examiner, eliminating a delay in processing and an unnecessary build-up of papers in the file history.
Don’t reject papers for obvious clerical errors.
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