Are claims cancelled by a Preliminary Amendment considered in determining additional claim fees?

When a Preliminary Amendment is submitted during the prosecution of a patent application, any claims that are cancelled by that amendment do not count towards the determination of additional claim fees. This is because the fee structure established by the USPTO bases additional fees on the number of claims that are present and active in the application, not on those that have been cancelled or are no longer being pursued.

The rationale behind this rule is to streamline the process and avoid penalizing applicants for modifying their claims in response to examination feedback or other considerations. This aligns with the principle that cancelled claims are effectively removed from the application, hence they should not impact the fee assessment.

In contrast, claims that remain active and are included in the application are what the USPTO considers for additional fee assessments. Therefore, since cancelled claims do not bear any financial consequences under the patent application rules, the answer reflects the proper understanding of how claim fees are structured in relation to cancelled claims.