In some ways…it seems the question is worded badly. As answer (A) states “If Jane is willing to accept the application as filed, she need not respond to the Notice, and the Office will accord the filing date of the original application.”

The document Zan linked to says one can “accept the document as deposited” how? by filing an appropriate amendment….which, it seems, the rest of the answer covers:

“Jane will need to file an amendment renumbering the pages consecutively and canceling incomplete sentences caused by the missing page 5.”

Thus, I think (A) is still correct, becuase she IS responding to the notice (by sending in the amendment_

BUT: the REAL difference now is that if you elect to “accept as deposited” you MUST respond within the set time frame (in the past, apparently, there was no time frame to reply, and thus, a “non reply” to the office action would automatically bump the app into this category of “accepted as stands.” This is no longer the case, as there is a time restriction now put on.

my 1.5 cents

If the OPAP reviews your application and sends you the Notice, you can just not reply and OPAP will treat this lack of reply as constructive acceptance of the application as is.

ON THE OTHER HAND, if the TC reviews your application and sends you the Notice, “If applicant is willing to accept the application, as filed, without all of the drawing figure(s) referred to in the application (item A above), applicant is REQUIRED TO submit (1) an amendment to the specification canceling all references to the omitted drawing figure(s) including any reference numerals shown only in the omitted drawing figure(s), (2) an amendment with replacement sheets of drawings in compliance with 37 CFR 1.121(d) renumbering the drawing figure(s) submitted on filing consecutively, and (3) a further amendment to the specification correcting references to drawing figure(s) to correspond with the relabeled drawing figure(s), both in the brief and detailed descriptions of the drawings. The amendment should be submitted in response to the Office action.”

So, the application located in the TC would probably go abandoned if no timely response is filed for the OA.

YIKES: This question does not say which entity sent out the Notice:( Hopefully this question is revised if it is currently part of the test-bank.

Having said this, I want to caution you: The document in your link is dated Jan 2007 and indicates that the MPEP will be revised in due course–which, it does not appear to have been. Thus, while the document may be current procedure, it does not appear to be “tested material”.

I just checked and according to the upsto’s website, the tested material is found at: http://www.uspto.gov/ip/boards/oed/aia_regexamsourcematerial.jsp and does not include a link to this document.

Thus, if I see this question on the exam, I will ignore this document and pick A as the answer choice based on the quoted language of 601.01(d).

As an aside: It is not unusual for tests over laws (not just patent law) to be based on outdated laws and test answers to be incorrect based on the current state of the law. The important thing is to apply the law that is being tested to the test questions.

My strategy is:
If there is a date given on a question and that date antedates E8R8, I am going to go with the answer from the key even if it contradicts E8R8. [For example, Q) Time for Filing an Appeal Brief (4.03.39a)]
On the other hand, if E8R8 antedates the date on the question or there is no date given, I am going to analyze the question under E8R8 and pick that answer even if it does not match the correct answer according to the key.

I hope this helps…What are your thoughts?

See the last statement of 1st paragraph. Basically states that applicant is no longer allowed to accept the file as submitted (do nothing) without filing a reply to the notice. I remember John White speaking of the 2 instances that we have the option to do nothing – it’s still ok to do nothing in regards to NOI, but we must let the PO know that’s what we choose to do.

Also, are you sure this rule change applies to this fact pattern? The excerpt from the MPEP seems to be right on point with answer choice A.

601.01(d)
I.APPLICATION ENTITLED TO FILING DATE
The mailing of a “Notice of Omitted Item(s)” will permit the applicant to: …
(C)accept the application as deposited in the USPTO… by ..:
(1)not filing a petition under 37 CFR 1.53(e) or 37 CFR 1.182 … THE FAILURE to file a petition under 37 CFR 1.53(e) or 37 CFR 1.182 WILL BE TREATED AS CONSTRUCTIVE ACCEPTANCE by the applicant of the application as deposited in the USPTO. The application will maintain the filing date as of the date of deposit of the application papers in the USPTO, … Amendment of the specification is required in a nonprovisional application to renumber the pages consecutively and … Such amendment should be by way of preliminary amendment submitted prior to the first Office action to avoid delays in the prosecution of the application.