MPEP § 710 — MPEP § 710
Current through: 2022-07-01

710-Period for Reply 
 
 

 
 
 
 
 
 
 
 

 

 
 
 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

 
 
 
 
 

 
 
 
 
 
 
 
 
 
 
 

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 Chapter 0700 

 Section 710 
 

 
 
 
 
 
 710 Period for Reply [R-07.2022]

 
 35 U.S.C. 133 
 Time for prosecuting application. 

 Upon failure of the applicant to prosecute the application within six
 months after any action therein, of which notice has been given or mailed to the
 applicant, or within such shorter time, not less than thirty days, as fixed by the
 Director in such action, the application shall be regarded as abandoned by the parties
 thereto.
 

 

 
 35 U.S.C. 267 
 Time for taking action in Government applications. 

 Notwithstanding the provisions of sections 133 and
 151 , the Director may extend the time for taking any action to
 three years, when an application has become the property of the United States and the
 head of the appropriate department or agency of the Government has certified to the
 Director that the invention disclosed therein is important to the armament or defense of
 the United States.
 

 

 See MPEP
 Chapter 1200 for period for reply when appeal is taken or court
 review sought.
 

 Extension of time under 35 U.S.C. 267 is decided by the
 Technology Center Director who oversees Licensing and Review.
 

 
 710.01 Statutory Period [R-07.2015]

 
 37 CFR 1.135 Abandonment for failure to reply within time period. 

 
 (a) If an applicant of a patent application fails to reply within
 the time period provided under § 1.134 and
 § 1.136 , the application will become abandoned unless an
 Office action indicates otherwise.
 

 (b) Prosecution of an application to save it from abandonment
 pursuant to paragraph (a) of this section must include such complete and proper
 reply as the condition of the application may require. The admission of, or
 refusal to admit, any amendment after final rejection or any amendment not
 responsive to the last action, or any related proceedings, will not operate to
 save the application from abandonment.
 

 (c) When reply by the applicant is a bona fide 
 attempt to advance the application to final action, and is substantially a
 complete reply to the non-final Office action, but consideration of some matter
 or compliance with some requirement has been inadvertently omitted, applicant
 may be given a new time period for reply under § 1.134 to
 supply the omission.
 

 
 

 The maximum statutory period for reply to an Office action is 6 months.
 35 U.S.C.
 133 . Shortened periods are currently used in practically all
 cases. See MPEP
 § 710.02(b) .
 

 37 CFR
 1.135 provides that if no reply is filed within the time set in
 the Office action under 37 CFR 1.134 or as it may be
 extended under 37 CFR
 1.136 , the application will be abandoned unless an Office action
 indicates otherwise.
 

 37 CFR
 1.135(b) specifies that: (A) the admission of, or refusal to
 admit, any amendment after final rejection, or any related proceedings, will not operate
 to save the application from abandonment; and (B) the admission of, or refusal to admit,
 any amendment not responsive to the last action, or any related proceedings, will not
 operate to save the application from abandonment.
 

 37 CFR
 1.135(c) was amended to change the practice of providing a
 nonstatutory time limit (generally 1 month) during which an applicant may supply
 an omission to a previous reply. Under the current practice, the examiner may set a
 shortened statutory time period (generally 2 months) during which an applicant must
 supply the omission to the previous reply to avoid abandonment.
 

 The prior practice under 37 CFR 1.135(c) was to set a time
 limit during which the applicant could supply the omission to the previous reply.
 Failure to supply the omission resulted in the abandonment of the application as of the
 due date for the previous reply. Filing a new application during the time limit, but
 beyond the due date for the previous reply, could have caused a loss of patent rights
 due to the lack of copendency between the applications.
 

 37 CFR
 1.135(c) now authorizes the examiner to accept a reply to a
 non-final Office action that is bona fide and is substantially
 complete but for an inadvertent omission as an adequate reply to avoid abandonment under
 35 U.S.C.
 133 and 37 CFR 1.135 . When a bona
 fide attempt to reply includes an inadvertent omission that precludes
 action on the merits of the application (e.g., an amendment is unsigned or improperly
 signed, or presents an amendment with additional claims so as to require additional fees
 pursuant to 37 CFR
 1.16(h), (i), or (j) ), the examiner may consider that reply
 adequate to avoid abandonment under 35 U.S.C. 133 and 37 CFR 1.135 , and
 give the applicant a shortened statutory time period of 2 months to correct the omission
 (e.g., provide a duplicate paper or ratification, or submit the additional claims fees
 or cancel the claims so that no fee is due). The failure to timely supply the omission
 will result in abandonment under 35 U.S.C. 133 and 37 CFR 1.135 .
 Extensions of time under 37 CFR 1.136(a) or (b) will be
 available, unless the action setting the shortened statutory period indicates
 otherwise.
 

 When a bona fide attempt to reply includes an
 omission that does not preclude action on the merits of the application (e.g., a reply
 fails to address a rejection or objection), the examiner may waive the deficiency in the
 reply and act on the application. The examiner may repeat and make final the rejection,
 objection, or requirement that was the subject of the omission. Thus, a reply to a
 non-final Office action that is bona fide but includes an omission
 may be treated by: (A) issuing an Office action that does not treat the reply on its
 merits but requires the applicant to supply the omission to avoid abandonment; or (B)
 issuing an Office action that does treat the reply on its merits (and which can also
 require the applicant to supply the omission to avoid abandonment).
 

 Finally, whether a 2-month shortened statutory time period is provided
 to the applicant to supply the omission to the previous reply is within the discretion
 of the examiner. Where the examiner determines that the omission was not inadvertent
 (e.g., the applicant is abusing the provisions of 37 CFR 1.135(c) to gain additional
 time to file a proper reply or to delay examination of the application), the examiner
 should notify the applicant of the omission in the reply and advise the applicant that
 the omission to the previous reply must be supplied within the period for reply to the
 prior action, including extensions of time under 37 CFR 1.136(a) , if permitted. See
 also MPEP
 § 714.03 .
 

 
 710.01(a) Statutory Period, How Computed [R-07.2022]

 The actual time taken for reply is computed from the notification or
 mail date printed on the Office action to the date of receipt by the Office of
 applicant’s reply. No cognizance is taken of fractions of a day and applicant’s reply
 is due on the corresponding day of the month 6 months or any lesser number of months
 specified after the Office action.
 

 For example, reply to an Office action with a 3-month shortened
 statutory period dated November 30 is due on the following February 28 (or 29 if it
 is a leap year), while a reply to an Office action dated February 28 is due on May 28
 and not on the last day of May. Ex parte Messick , 7 USPQ 57
 (Comm’r Pat. 1930).
 

 A 1-month extension of time extends the time for reply to the date
 corresponding to the Office action date in the following month. For example, a reply
 to an Office action mailed on January 31 with a 3-month shortened statutory period
 would be due on April 30. If a 1-month extension of time were given, the reply would
 be due by May 31. The fact that April 30 may have been a Saturday, Sunday, or federal
 holiday has no effect on the extension of time. Where the period for reply is
 extended by some time period other than “1-month” or an even multiple thereof, the
 person granting the extension should indicate the date upon which
 the extended period for reply will expire.
 

 When a timely reply is ultimately not filed, the application is
 regarded as abandoned after midnight of the date the period for reply expired. In the
 above example where May 31 is not a Saturday, Sunday, or federal holiday and no
 further extensions of time are obtained prior to the end of the 6-month statutory
 period, the application would be abandoned as of June 1. The fact that June 1 may be
 a Saturday, Sunday, or federal holiday does not change the abandonment date since the
 reply was due on May 31, a business day. See MPEP § 711.04(a) for guidance on the
 date of abandonment, including examples.
 

 A 30-day period for reply in the Office means 30 calendar days
 including Saturdays, Sundays, and federal holidays. However, if the period ends on a
 Saturday, Sunday, or federal holiday, the reply is timely if it is filed on the next
 succeeding business day. If the period for reply is extended, the time extended is
 added to the last calendar day of the original period, as opposed to being added to
 the day it would have been due when said last day is a Saturday, Sunday, or federal
 holiday.
 

 The date of receipt of a reply to an Office action is recorded in the
 electronic file as the receipt date of the reply paper.
 

 In some cases the examiner’s Office action does not determine the
 beginning of a statutory reply period. In all cases where the statutory reply period
 runs from the date of a previous action, a statement to that effect should be
 included.
 

 Since extensions of time are available pursuant to 37 CFR
 1.136(a) , it is incumbent upon applicants to recognize the date
 for reply so that the proper fee for any extension will be submitted. Thus, the date
 upon which any reply is due will normally be indicated only in those instances where
 the provisions of 37 CFR 1.136(a) are not available. See MPEP Chapter 2200 
 for reexamination proceedings.
 

 

 

 
 710.02 Shortened Statutory Period and Time Limit Actions
 Computed [R-07.2015]
 

 
 37 CFR 1.136 Extensions of time. 

 
 (a) 
 
 (1) If an applicant is required to reply within a
 nonstatutory or shortened statutory time period, applicant may extend the
 time period for reply up to the earlier of the expiration of any maximum
 period set by statute or five months after the time period set for reply,
 if a petition for an extension of time and the fee set in §
 1.17(a) are filed,
 unless:
 
 (i) Applicant is notified otherwise in an Office
 action;
 

 (ii) The reply is a reply brief submitted pursuant to §
 41.41 of this
 title;
 

 (iii) The reply is a request for an oral hearing
 submitted pursuant to § 41.47(a) of
 this title;
 

 (iv) The reply is to a decision by the Patent Trial and
 Appeal Board pursuant to § 41.50 or §
 41.52 of this
 chapter or to § 90.3 of this
 chapter; or
 

 (v) The application is involved in a contested case (§
 41.101(a) of
 this title) or a derivation proceeding (§ 42.4(b) of this title).
 

 
 

 (2) The date on which the petition and the fee have been
 filed is the date for purposes of determining the period of extension and
 the corresponding amount of the fee. The expiration of the time period is
 determined by the amount of the fee paid. A reply must be filed prior to
 the expiration of the period of extension to avoid abandonment of the
 application (§ 1.135 ), but in no
 situation may an applicant reply later than the maximum time period set
 by statute, or be granted an extension of time under paragraph (b) of
 this section when the provisions of paragraph (a) of this section are
 available.
 

 (3) A written request may be submitted in an application that
 is an authorization to treat any concurrent or future reply, requiring a
 petition for an extension of time under this paragraph for its timely
 submission, as incorporating a petition for extension of time for the
 appropriate length of time. An authorization to charge all required fees,
 fees under § 1.17 , or all required
 extension of time fees will be treated as a constructive petition for an
 extension of time in any concurrent or future reply requiring a petition
 for an extension of time under this paragraph for its timely submission.
 Submission of the fee set forth in § 1.17(a) will also be treated as a constructive
 petition for an extension of time in any concurrent reply requiring a
 petition for an extension of time under this paragraph for its timely
 submission.
 

 
 

 (b) When a reply cannot be filed within the time period set for
 such reply and the provisions of paragraph (a) of this section are not
 available, the period for reply will be extended only for sufficient cause and
 for a reasonable time specified. Any request for an extension of time under
 this paragraph must be filed on or before the day on which such reply is due,
 but the mere filing of such a request will not effect any extension under this
 paragraph. In no situation can any extension carry the date on which reply is
 due beyond the maximum time period set by statute. Any request under this
 paragraph must be accompanied by the petition fee set forth in §
 1.17(g) .
 

 (c) If an applicant is notified in a “Notice of Allowability” that
 an application is otherwise in condition for allowance, the following time
 periods are not extendable if set in the “Notice of Allowability” or in an
 Office action having a mail date on or after the mail date of the “Notice of
 Allowability”:
 
 (1) The period for submitting the inventor’s oath or
 declaration;
 

 (2) The period for submitting formal drawings set under
 § 1.85(c) ; and
 

 (3) The period for making a deposit set under §
 1.809(c) .
 

 
 

 (d) See § 1.550(c) for extensions of
 time in ex parte reexamination proceedings, §
 1.956 for extensions of time in inter
 partes reexamination proceedings; §§ 41.4(a) 
 and 41.121(a)(3) of this chapter for extensions of time in
 contested cases before the Patent Trial and Appeal Board; § 42.5(c) of this chapter for extensions of time in trials
 before the Patent Trial and Appeal Board; and § 90.3 of this chapter for extensions of time to appeal to
 the U.S. Court of Appeals for the Federal Circuit or to commence a civil
 action.
 

 
 

 37 CFR
 1.136 implements 35 U.S.C. 41(a)(8) which directs the
 Director of the USPTO to charge fees for extensions of time to take action in patent
 applications.
 

 Under 37 CFR 1.136 ( 35 U.S.C. 133 ) an applicant may be
 required to reply in a shorter period than 6 months, not less than 30 days. Some
 situations in which shortened periods for reply are used are listed in
 MPEP §
 710.02(b) .
 

 In other situations, for example, the rejection of a copied patent
 claim, the examiner may require applicant to reply on or before a specified date. These
 are known as time limit actions and are established under authority of 35 U.S.C. 2 and
 35 U.S.C.
 3 . Some situations in which time limits are set are noted in
 MPEP
 § 710.02(c) . The time limit requirement should be typed in
 capital letters where required.
 

 An indication of a shortened time for reply should appear prominently on
 the first page of all copies of actions in which a shortened time for reply has been set
 so that a person merely scanning the action can easily see it.
 

 Shortened statutory periods are subject to the provisions of
 37 CFR
 1.136(a) unless applicant is notified otherwise in an Office
 action. See MPEP §
 710.02(e) for a discussion of extensions of time. See
 Chapter
 2200 for ex parte reexamination proceedings
 and Chapter
 2600 for inter partes reexamination
 proceedings.
 

 
 710.02(a) [Reserved]

 

 

 
 710.02(b) Shortened Statutory Period: Situations in Which
 Used [R-07.2015]
 

 Under the authority given him or her by 35 U.S.C.
 133 , the Director of the USPTO has directed the examiner to set
 a shortened period for reply to every action. The length of the shortened statutory
 period to be used depends on the type of reply required. Some specific cases of
 shortened statutory periods for reply are given below. These periods may be changed
 under special, rarely occurring circumstances.
 

 A shortened statutory period may not be less than 30 days
 ( 35 U.S.C.
 133 ).
 

 The Patent Law Treaty (PLT), which entered into force
 with respect to the United States on December 18, 2013, provides for a time period of
 at least two months for replies to most Office actions and other notices. The Office
 has certain pilot programs that are not encompassed by this requirement of the PLT
 and set a time period of less than two months for reply.
 

 2 MONTHS 
 (A) Requirement for restriction or election of species only (no
 action on the merits) ...... MPEP §§ 809.02(a) and
 817 .
 

 (B) When a reply by an applicant for a nonfinal Office action is
 bona fide but includes an inadvertent omission, the
 examiner may set a 2 month shortened statutory time period to correct the
 omission .... MPEP §§ 710.01 and 714.03 .
 

 (C) Winning party in a terminated interference to reply to an
 unanswered Office action ...... MPEP Chapter 2300 .
 
 Where, after the termination of an interference
 proceeding, the application of the winning party contains an
 unanswered Office action, final rejection or any other action, the
 primary examiner notifies the applicant of this fact. In this case
 reply to the Office action is required within a shortened statutory
 period running from the date of such notice. See Ex parte
 Peterson, 49 USPQ 119, 1941 C.D. 8, 525 OG 3 (Comm’r Pat.
 1941).
 

 
 

 (D) To reply to an Ex parte Quayle Office action ......... MPEP §
 714.14 .
 
 When an application is in condition for allowance,
 except as to matters of form, such as correction of the specification,
 a new oath, etc., the application will be considered special and
 prompt action taken to require correction of formal matters. Such
 action should include an indication on the Office Action Summary form
 PTOL-326 that prosecution on the merits is closed in accordance with
 the decision in Ex parte Quayle, 25 USPQ 74, 453 OG
 213 (Comm’r Pat. 1935). A 2-month shortened statutory period for reply
 should be set.
 

 
 

 (E) Multiplicity rejection — no other rejection ........
 MPEP §
 2173.05(n) .
 

 3 MONTHS To reply to any Office action on the merits.

 PERIOD FOR REPLY RESTARTED Where the citation of a reference is incorrect or an Office
 action contains some other defect and this error is called to the attention of the
 Office within 1 month of the mail date of the action, the Office will restart the
 previously set period for reply to run from the date the error is corrected, if
 requested to do so by applicant. See MPEP § 710.06 .
 

 

 
 710.02(c) Specified Time Limits: Situations in Which Used [R-11.2013]

 There are certain situations in which the examiner specifies a time
 for the applicant to take some action, and the applicant’s failure to timely take the
 specified action results in a consequence other than abandonment. Situations in which
 a specified time limit for taking an action is set are as follows:
 

 
 (A) Where a member of the public files a petition under
 37 CFR
 1.14(a) for access to an application, the Office may give
 the applicant a specified time (usually 3 weeks) within which to state any
 objections to the granting of the petition for access and the reasons why it
 should be denied. The failure to timely reply will not affect the prosecution
 of the application (assuming that it is still pending), but will result in the
 Office rendering a decision on the petition for access without considering any
 objections by the applicant. See MPEP § 103 .
 

 (B) Where an information disclosure statement complies with the
 requirements set forth in 37 CFR 1.97 (including the
 requirement for fees or statement under 37 CFR 1.97(e) based upon
 the time of filing), but part of the content requirement of 37 CFR
 1.98 has been inadvertently omitted, the examiner may set
 a 1-month time limit for completion of the information disclosure statement.
 The failure to timely comply will not result in abandonment of the application,
 but will result in the information disclosure statement being placed in the
 application file with the noncomplying information not being considered. See
 MPEP
 § 609.05(a) .
 

 (C) Where an application is otherwise allowable but contains a
 traverse of a restriction requirement, the applicant may be given a specified
 time (e.g., a 2-month time limit) to cancel claims to the nonelected invention
 or species or take other appropriate action (i.e., petition the restriction
 requirement under 37 CFR 1.144 ). The failure
 to timely file a petition under 37 CFR 1.144 (or cancel the
 claims to the nonelected invention or species) will not result in abandonment
 of the application, but will be treated as authorization to cancel the claims
 to the non-elected invention or species, and the application will be passed to
 issue. See 37
 CFR 1.141 and 1.144 , and
 MPEP §§
 821.01 and 821.04(a) .
 

 (D) A portion of 37 CFR 41.202(c) provides
 that in suggesting claims for interference:
 
 An examiner may require an applicant to add a
 claim to provoke an interference for an application subject to
 pre-AIA
 35 U.S.C. 102(g) . Failure to satisfy the requirement
 within a period (not less than one month) the examiner sets will operate as
 a concession of priority for the subject matter of the claim.
 

 The failure to timely present the suggested
 claim will not result in abandonment of the application, but will be treated
 as a concession by the applicant of the priority of the subject matter of
 the claim. See MPEP Chapter 2300 .
 

 
 

 
 Where the failure to take the specified action may result in
 abandonment (e.g., filing a new complete appeal brief correcting the deficiencies in
 a prior appeal brief), a time period should be set for taking the specified action.
 Where the condition of the application requires that such action not be subject to
 extensions under 37
 CFR 1.136 , the action should specify that the provisions of
 37 CFR
 1.136 (or 1.136(a) ) do not apply to the
 time period for taking action (i.e., a specified time limit should not be set simply
 to exclude the possibility of extending the period for reply under 37 CFR
 1.136 ).
 

 

 
 710.02(d) Difference Between Shortened Statutory Periods for Reply and
 Specified Time Limits [R-07.2015]
 

 Examiners and applicants should not lose sight of the distinction
 between a specified time for a particular action and a shortened statutory period for
 reply under 35
 U.S.C. 133 : 
 

 
 (A) The penalty attaching to failure to take a particular action
 within a specified time is a loss of rights in regard to the particular matter
 (e.g., the failure to timely copy suggested claims results in a disclaimer of
 the involved subject matter). On the other hand, a failure to reply within the
 set statutory period under 35 U.S.C. 133 results in
 abandonment of the entire application. Abandonment of an application is not
 appealable, but a petition to revive may be granted if the delay was
 unintentional ( 37 CFR 1.137(a) ).
 

 (B) As a specified time or time limit is not a shortened statutory
 period under 35 U.S.C. 133 , the Office
 may specify a time for taking action (or a time limit) of less than the 30 day
 minimum specified in 35 U.S.C. 133 . See
 MPEP
 § 103 .
 

 (C) Where an applicant replies a day or two after the specified
 time, the delay may be excused by the examiner if satisfactorily explained. The
 examiner may use his or her discretion to request an explanation for the delay
 if the reason for the delay is not apparent from the reply. A reply 1 day late
 in an application carrying a shortened statutory period under 35 U.S.C.
 133 , no matter what the excuse, results in abandonment.
 Extensions of the statutory period under 35 U.S.C. 133 may be
 obtained under 37 CFR 1.136 , provided the
 extension does not go beyond the 6-month statutory period from the date of the
 Office action ( 35 U.S.C. 133 ).
 

 
 The 2-month time period for filing an appeal brief on appeal to the
 Patent Trial and Appeal Board ( 37 CFR 41.37(a) ) and the 1-month
 time period for filing a new appeal brief to correct the deficiencies in a defective
 appeal brief ( 37
 CFR 41.37(d) ) are time periods, but are not (shortened)
 statutory periods for reply set pursuant to 35 U.S.C. 133 . Thus, these
 periods are, unless otherwise provided, extendable by up to 5 months under
 37 CFR
 1.136(a) , and, in an exceptional situation, further extendable
 under 37 CFR
 1.136(b) (i.e., these periods are not 
 statutory periods subject to the 6-month maximum set in 35 U.S.C.
 133 ). In addition, the failure to file an appeal brief (or a
 new appeal brief) within the time period set in 37 CFR 41.37(a) (or
 (d) ) results in dismissal of the appeal. The dismissal of an
 appeal results in abandonment, unless there is any allowed claim(s) (see
 MPEP §
 1215.04 ), in which case the examiner should cancel the
 nonallowed claims and allow the application.
 

 The 2-month time period for reply to A Notice to File Missing Parts
 of an Application is not identified on the Notice as a statutory period subject to
 35 U.S.C.
 133 . Thus, extensions of time of up to 5 months under
 37 CFR
 1.136(a) , followed by additional time under 37 CFR
 1.136(b) , when appropriate, are permitted.
 

 

 
 710.02(e) Extension of Time [R-01.2024]

 
 37 CFR 1.136 Extensions of time. 

 
 (a)
 
 (1) If an applicant is required to reply within a
 nonstatutory or shortened statutory time period, applicant may extend
 the time period for reply up to the earlier of the expiration of any
 maximum period set by statute or five months after the time period set
 for reply, if a petition for an extension of time and the fee set in
 § 1.17(a) are filed,
 unless:
 
 (i) Applicant is notified otherwise in an Office
 action;
 

 (ii) The reply is a reply brief submitted pursuant to
 § 41.41 of
 this title;
 

 (iii) The reply is a request for an oral hearing
 submitted pursuant to § 41.47(a) of
 this title;
 

 (iv) The reply is to a decision by the
 Patent Trial and Appeal Board pursuant to § 41.50 or § 41.52 of this chapter or to §
 90.3 of this
 chapter; or
 

 (v) The application is involved in a
 contested case (§ 41.101(a) of
 this title) or a derivation proceeding (§ 42.4(b) of this title).
 

 
 

 (2) The date on which the petition and the fee
 have been filed is the date for purposes of determining the period of
 extension and the corresponding amount of the fee. The expiration of
 the time period is determined by the amount of the fee paid. A reply
 must be filed prior to the expiration of the period of extension to
 avoid abandonment of the application (§ 1.135 ), but in no situation may an applicant
 reply later than the maximum time period set by statute, or be granted
 an extension of time under paragraph (b) of this section when the
 provisions of paragraph (a) of this section are available.
 

 (3) A written request may be submitted in an application
 that is an authorization to treat any concurrent or future reply,
 requiring a petition for an extension of time under this paragraph for
 its timely submission, as incorporating a petition for extension of
 time for the appropriate length of time. An authorization to charge
 all required fees, fees under § 1.17 , or all required extension of time fees
 will be treated as a constructive petition for an extension of time in
 any concurrent or future reply requiring a petition for an extension
 of time under this paragraph for its timely submission. Submission of
 the fee set forth in § 1.17(a) will also be treated as a constructive
 petition for an extension of time in any concurrent reply requiring a
 petition for an extension of time under this paragraph for its timely
 submission.
 

 
 

 (b) When a reply cannot be filed within the time period set for
 such reply and the provisions of paragraph (a) of this section are not
 available, the period for reply will be extended only for sufficient cause
 and for a reasonable time specified. Any request for an extension of time
 under this paragraph must be filed on or before the day on which such reply
 is due, but the mere filing of such a request will not affect any extension
 under this paragraph. In no situation can any extension carry the date on
 which reply is due beyond the maximum time period set by statute. Any
 request under this section must be accompanied by the petition fee set forth
 in § 1.17(g) .
 

 (c) If an applicant is notified in a 
 "Notice
 of Allowability"
 
 
 that an application is otherwise in
 condition for allowance, the following time periods are not extendable if
 set in the 
 "Notice of Allowability"
 
 
 
 or in an Office action having a mail date on or after the mail date of the
 
 "Notice of Allowability"
 
 
 :
 
 (1) The period for submitting an inventor’s oath or
 declaration
 

 (2) The period for submitting formal drawings set under §
 1.85(c) ; and
 

 (3) The period for making a deposit set under §
 1.809(c) .
 

 
 

 (d) See § 1.550(c) for extensions
 of time in ex parte reexamination proceedings, §
 1.956 for extensions of time in inter
 partes reexamination proceedings; §§ 41.4(a) and 41.121(a)(3) of this
 chapter for extensions of time in contested cases before the Patent Trial
 and Appeal Board; § 42.5(c) of this chapter
 for extensions of time in trials before the Patent Trial and Appeal Board;
 and § 90.3 of this chapter for
 extensions of time to appeal to the U.S. Court of Appeals for the Federal
 Circuit or to commence a civil action.
 

 
 

 37 CFR
 1.136 provides for two distinct procedures to extend the period
 for action or reply in particular situations. The procedure which is available for
 use in a particular situation will depend upon the circumstances. 37 CFR 1.136(a) 
 permits an applicant to file a petition for extension of time and a fee as set forth
 in 37
 CFR 1.17(a) up to 5 months after the end of the time period set
 to take action except:
 

 
 (A) where prohibited by statute, 

 (B) where prohibited by one of the items listed in the rule, or
 
 

 (C) where applicant has been notified otherwise in an Office
 action. 
 

 
 The petition and fee must be filed within the extended time period
 for reply requested in the petition and can be filed prior to, with, or without the
 reply. The filing of the petition and fee will extend the time period to take action
 up to 5 months dependent on the amount of the fee paid except in those circumstances
 noted above. 37 CFR
 1.136(a) will effectively reduce the amount of paperwork
 required by applicants and the Office since the extension will be effective upon
 filing of the petition and payment of the appropriate fee and without acknowledgment
 or action by the Office and since the petition and fee can be filed with or without
 the reply. 37 CFR
 1.136(b) provides for requests for extensions of time upon a
 showing of sufficient cause when the procedure of 37 CFR 1.136(a) is not available.
 Although the petition and fee procedure of 37 CFR 1.136(a) will normally be
 available within 5 months after a set period for reply has expired, an extension
 request for cause under 37 CFR 1.136(b) must be filed
 during the set period for reply. Extensions of time in interference proceedings are
 governed by 37 CFR
 41.4(a) .
 

 It should be very carefully noted that neither the primary examiner
 nor the Director of the USPTO has authority to extend the shortened statutory period
 unless a petition for the extension is filed. While the shortened period may be
 extended within the limits of the statutory 6 months period, no extension can operate
 to extend the time beyond the 6 months.
 

 Any request under 37 CFR 1.136(b) for extension of
 time for reply must state a reason in support thereof and supply the fee under
 37
 CFR 1.17(g) . Such extensions will only be granted for
 sufficient cause and must be filed prior to the end of the set period for reply.
 

 Extensions of time with the payment of a fee pursuant to
 37 CFR
 1.136(a) are possible in reply to most Office actions of the
 examiner. Exceptions include:
 

 
 (A) all extensions in a reexamination proceeding (see
 37 CFR
 1.550(c) and MPEP § 2265 for ex
 parte reexamination, and 37 CFR 1.956 and
 MPEP §
 2665 for inter partes 
 reexamination);
 

 (B) all extensions during an interference proceeding (but not
 preparatory to an interference where a claim is suggested for
 interference);
 

 (C) those specific situations where an Office action states that
 the provisions of 37 CFR 1.136(a) are not
 applicable (e.g., reply to a notice of allowability, in reissue applications
 associated with litigation, or where an application in allowable condition has
 nonelected claims and time is set to cancel such claims); and 
 

 (D) those limited instances where applicant is given a specified
 time limit to take certain actions.
 

 
 The fees for extensions of time under 37 CFR 1.136(a) 
 are set forth in 37 CFR 1.17(a) and are subject to
 a 60% reduction for persons or concerns qualifying as small entities and an 80%
 reduction for micro entities. The fees itemized at 37 CFR
 1.17(a) are cumulative. Thus, if an applicant has paid an
 extension fee in the amount set forth in 37 CFR
 1.17(a)(l) for a 1-month extension of time and thereafter
 decides that an additional 1 month is needed, the proper fee would be the amount set
 forth in 37 CFR 1.17(a)(2) less the amount
 set forth in 37 CFR 1.17(a)(l) which was
 previously paid.
 

 37 CFR
 1.136(a)(3) provides that:
 

 
 (A) a written request may be submitted in an application that is an
 authorization to treat any concurrent or future reply that requires a petition
 for an extension of time under 37 CFR 1.136(a) to be
 timely, as incorporating a petition for extension of time for the appropriate
 length of time; 
 

 (B) an authorization to charge all required fees, fees under
 37 CFR 1.17 , or all
 required extension of time fees will be treated as a constructive petition for
 an extension of time in any concurrent or future reply requiring a petition for
 an extension of time under 37 CFR 1.136(a) to be
 timely; and 
 

 (C) submission of the fee set forth in 37 CFR
 1.17(a) will be treated as a constructive petition for an
 extension of time in any concurrent reply requiring a petition for an extension
 of time under 37 CFR 1.136(a) to be timely.
 

 
 Accordingly, 37 CFR 1.136(a)(3) is a
 
 "safety net"
 
 
 to avoid a potential loss of
 patent rights for applicants who inadvertently omitted a petition, but who had: 
 

 
 (A) previously filed a written request to treat a reply requiring
 an extension of time as incorporating a petition for such extension of time;
 
 

 (B) previously filed an authorization to charge all required fees,
 fees under 37 CFR 1.17 , or all
 required extension of time fees; or 
 

 (C) submitted the fee set forth in 37 CFR
 1.17(a) with the reply.
 

 
 The Office strongly recommends including a
 written petition for any desired extension of time in reply to the Office action for
 which the extension was requested to avoid processing delays. 
 

 A proper petition may be only a few sentences such as

 
 The applicant herewith petitions the Director of the United States
 Patent and Trademark Office to extend the time for reply to the Office action
 dated ____ for ____ month(s) from ____ to ____ . Submitted herewith is a check for
 $____ to cover the cost of the extension [Please Charge my deposit account number
 ____ , in the amount of $ ____ to cover the cost of the extension. Any deficiency
 or overpayment should be charged or credited to the above numbered deposit
 account.]
 

 
 37 CFR
 1.136(a)(2) provides, in part, that “[t]he date on which the
 petition and the fee have been filed is the date for purposes of determining the
 period of extension and the corresponding amount of the fee.” Thus, a petition under
 37 CFR
 1.136(a) need not be accompanied by a reply
 (e.g . , in situations in which the extension is necessary for
 copendency with a continuing application). 37 CFR 1.136(a)(2) , however,
 clarifies that “[a] reply must be filed prior to the expiration of the period of
 extension to avoid abandonment of the application” under 35 U.S.C.
 133 and 37 CFR 1.135 (e.g., where the
 extension is obtained solely for the purpose of copendency with a continuing
 application, and no reply is filed, the application will become abandoned upon
 expiration of the so-extended period for reply).
 

 While a petition for an extension of time under 37 CFR 1.136(a) 
 must be filed within the extended period for reply, the petition need not be filed
 within the original shortened statutory period for reply. If a petition for an
 extension of time under 37 CFR 1.136(a) (with or without
 a reply) requests an insufficient period of extension such that the petition would be
 filed outside the so-extended period for reply, but the period for reply could be
 further extended under 37 CFR 1.136(a) such that the
 petition would be filed within the further extended period for reply, it is Office
 practice to simply treat the petition for extension of time as requesting the period
 of extension necessary to make the petition filed within the further extended period
 for reply if the petition or application contains an authorization to charge
 extension fees or fees under 37 CFR 1.17 to a deposit account.
 That is, in such situations a petition for an extension of time under
 37 CFR
 1.136(a) is simply construed as requesting the appropriate
 period of extension. For example, if a petition (and requisite fee) for a two-month
 extension of time containing an authorization to charge fee deficiencies to a deposit
 account are filed in an application four and one-half months after the date a notice
 of appeal was filed in that application, it is Office practice to treat the petition
 as requesting the period of extension (three months) necessary to make the petition
 filed within the extended period for reply. This practice applies even if no further
 reply (appeal brief or continued prosecution application (CPA) under
 37 CFR
 1.53(d) ) is filed in the application to be treated as a
 constructive petition for an extension of time under 37 CFR
 1.136(a)(3) .
 

 To facilitate processing, any petition for an extension of time (or
 petition to revive under 37 CFR 1.137 ) in which a
 continuing application is filed in lieu of a reply should specifically refer to the
 filing of the continuing application and also should include an express abandonment
 of the prior application conditioned upon the granting of the petition and the
 granting of a filing date to the continuing application. 
 

 Applicants are cautioned that an extension of time will not be
 effected in the prior application by filing a petition for an extension of time,
 extension fee, or fee authorization, in the continuing application. This is because
 the petition for an extension of time (or constructive petition under
 37 CFR
 1.136(a)(3) ) must be directed toward and filed in the
 application to which it pertains in accordance with 37 CFR 1.4 and
 1.5 .
 

 Where a reply is filed after the set period for reply has expired and
 no petition or fee accompanies it, the reply will not be accepted as timely until the
 petition (which may be a constructive petition under 37 CFR
 1.136(a)(3) ) and the appropriate fee are submitted. For
 example, if an Office action sets a 3-month period for reply and applicant replies in
 the 4th month and includes only the petition for a 1-month extension of time, the
 reply is not acceptable until the fee is filed. If the fee is not filed until the 5th
 month, an additional fee for the 2nd month extension would also be required in order
 to render the reply timely.
 

 An extension of time under 37 CFR 1.136 is not necessary
 when submitting a supplemental reply to an Office action if a complete first reply
 was timely filed in reply to the Office action.
 

 When the provisions of 37 CFR 1.136(a) are not
 applicable, extensions of time for cause pursuant to 37 CFR 1.136(b) 
 may be possible. Any such extension must be filed on or before the day on which the
 reply is due. The mere filing of such a request will not effect any extension. All
 such requests are to be decided by the Technology Center (TC) Director. No extension
 can operate to extend the time beyond the 6-month statutory period. Extensions of
 time under 37 CFR
 1.136(b) (or 37 CFR 1.136(a) ) are not
 available to extend the time period set in a Notice of Allowability, or in an Office
 action having a mail date after the mail date of the Notice of Allowability, to
 submit an inventor’s oath or declaration under 37 CFR 1.63 and 1.64 , to
 submit formal drawings, or to make a deposit of biological material.
 

 If a request for extension of time under 37 CFR 1.136(b) 
 is filed in duplicate and accompanied by a stamped return-addressed envelope, the
 Office will indicate the action taken on the duplicate and return it promptly in the
 envelope. Utilization of this procedure is optional on the part of applicant. In this
 procedure, the action taken on the request should be noted on the original and on the
 copy which is to be returned. The notation on the original, which becomes a part of
 the file record, should be signed by the person granting or denying the extension,
 and the name and title of that person should also appear in the notation on the copy
 which is returned to the person requesting the extension.
 

 When the request is granted, no further action by the Office is
 necessary. When the request is granted in part, the extent of the extension granted
 will be clearly indicated on both the original and on the copy which is to be
 returned. When the request is denied, the reason for the denial will be indicated on
 both the original and on the copy which is to be returned or a formal decision letter
 giving the reason for the denial will be forwarded promptly after the mailing of the
 duplicate.
 

 If the request for extension of time is granted, the due date is
 computed from the date stamped or printed on the action, as opposed to the original
 due date. See MPEP § 710.01(a) . For example, a reply to an action with a
 3-month shortened statutory period, dated November 30, is due on the following
 February 28 (or 29, if it is a leap year). If the period for reply is extended an
 additional month, the reply becomes due on March 30, not on March 28.
 

 Hand-carried requests for extensions of time will
 no longer be accepted in the TCs. Hand-carried requests for
 extensions of time may only be delivered to the Customer Service Window. See
 MPEP §
 501 , subsection III for information regarding hand-delivery
 of papers.
 

 Applicant should be advised promptly regarding action taken on the
 request for extension of time under 37 CFR 1.136(b) so that the file
 record will be complete.
 

 Form paragraphs 7.98 or 7.98.01 may be used
 where a reply is filed late but an extension of time is possible.
 

 ¶ 7.98 Reply Is Late, Extension of Time Suggested

 Applicant’s reply was received in the Office on [1] , which is after the expiration of the period for reply set in the last Office action mailed on [2] . This application will become abandoned unless applicant obtains an extension of time to reply to the last Office action
 under 37 CFR 1.136(a) . In no case can any extension carry the date for reply to this letter beyond the maximum period of SIX MONTHS set by statute
 ( 35 U.S.C. 133 ).
 

 Examiner Note:

 Since the provisions of 37 CFR 1.136(a) do not apply to reexamination proceedings or to litigation related reissue applications, do not use this form paragraph in these cases.
 

 

 ¶ 7.98.01 Reply Is Late, Extension of Time Suggested, Pro Se

 Applicant’s reply to the Office Action of [1] was received
 in the Patent and Trademark Office on [2] , which is after the expiration of the
 period for reply set in the above noted Office action. The application will become abandoned
 unless applicant obtains an extension of the period for reply set in the above noted Office
 action. An extension of the reply period may be obtained by filing a petition under
 37
 CFR 1.136(a) . The petition must be accompanied by the appropriate fee as
 set forth in 37
 CFR 1.17(a) (copy of current fee schedule attached). The date on which
 the reply, the petition, and the fee have been filed is the date of the reply and also the
 date for purposes of determining the period of extension and the corresponding amount of the
 fee due. The expiration of the time period is determined by the amount of the fee paid.
 Although 37
 CFR 1.136(a) provides for payment of up to five months of extension,
 applicant is advised that in no case can any extension carry the date for reply to an Office
 action beyond the maximum period of SIX MONTHS set by statute in 35 U.S.C. 133 .
 

 Examiner Note:

 Enclose a photocopy of current fee schedule with action so that applicant can determine the required fee.

 
 I. FINAL REJECTION — TIME FOR REPLY If an applicant initially replies within 2 months from the date of
 mailing of any final rejection setting a 3-month shortened statutory period for
 reply and the Office does not mail an advisory action until after the end of the
 3-month shortened statutory period, the period for reply for purposes of
 determining the amount of any extension fee will be the date on which the Office
 mails the advisory action advising applicant of the status of the application, but
 in no event can the period extend beyond 6 months from the date of the final
 rejection. This procedure applies only to a first reply to a final rejection. The
 following language must be included by the examiner in each final rejection.
 

 
 A SHORTENED STATUTORY PERIOD FOR REPLY TO THIS FINAL ACTION IS
 SET TO EXPIRE THREE MONTHS FROM THE DATE OF THIS ACTION. IN THE EVENT A FIRST
 REPLY IS FILED WITHIN TWO MONTHS OF THE MAILING DATE OF THIS FINAL ACTION AND
 THE ADVISORY ACTION IS NOT MAILED UNTIL AFTER THE END OF THE THREE-MONTH
 SHORTENED STATUTORY PERIOD, THEN THE SHORTENED STATUTORY PERIOD WILL EXPIRE ON
 THE DATE THE ADVISORY ACTION IS MAILED, AND ANY EXTENSION FEE PURSUANT TO
 37 CFR
 1.136(a) WILL BE CALCULATED FROM THE MAILING DATE OF THE
 ADVISORY ACTION. IN NO EVENT WILL THE STATUTORY PERIOD FOR REPLY EXPIRE LATER
 THAN SIX MONTHS FROM THE DATE OF THIS FINAL ACTION.
 

 
 For example, if applicant initially replies within 2 months from
 the date of mailing of a final rejection and the examiner mails an advisory action
 before the end of 3 months from the date of mailing of the final rejection,
 the shortened statutory period will expire at the end of 3 months from the date of
 mailing of the final rejection. In such a case, if a petition for extension of
 time is granted, the due date for a reply is computed from the date stamped or
 printed on the Office action with the final rejection. See MPEP §
 710.01(a) . If the examiner, however, does not mail an
 advisory action until after the end of 3 months, the shortened statutory period
 will expire on the date the examiner mails the advisory action and any extension
 of time fee may be calculated from the mailing date of the advisory action. In no
 event will the statutory period for reply expire later than 6 months from the
 mailing date of the final Office action.
 

 See also MPEP § 706.07(f) .
 

 II. EXTENSIONS OF TIME TO SUBMIT AFFIDAVITS AFTER FINAL REJECTION Frequently, applicants request an extension of time, stating as a
 reason therefor that more time is needed in which to submit an affidavit. When
 such a request is filed after final rejection, the granting of the request for
 extension of time is without prejudice to the right of the examiner to question
 why the affidavit is now necessary and why it was not earlier presented. If
 applicant’s showing is insufficient, the examiner may deny entry of the affidavit,
 notwithstanding the previous grant of an extension of time to submit it. The grant
 of an extension of time in these circumstances serves merely to keep the
 application from becoming abandoned while allowing the applicant the opportunity
 to present the affidavit or to take other appropriate action. Moreover,
 prosecution of the application to save it from abandonment must include such
 timely, complete and proper action as required by 37 CFR
 1.113 . The admission of the affidavit for purposes other than
 allowance of the application, or the refusal to admit the affidavit, and any
 proceedings relative thereto, shall not operate to save the application from
 abandonment.
 

 Implicit in the above practice is the fact that affidavits
 submitted after final rejection are subject to the same treatment as amendments
 submitted after final rejection. See 37 CFR 1.116(c) .
 

 Failure to file a reply during the shortened statutory period
 results in abandonment of the application unless the time is extended under the
 provisions of 37
 CFR 1.136 .
 

 Extensions of time to appeal to the courts under 37 CFR
 90.3(c) are covered in MPEP §
 1216 .
 

 III. NO EXTENSIONS OF TIME AFTER PAYMENT OF ISSUE FEE The statutory (nonextendable) time period for payment of the issue
 fee is 3 months from the date of the Notice of Allowance ( 35 U.S.C.
 151 ). In situations where informalities such as drawing
 corrections are outstanding at the time of allowance, applicants will be notified
 on the PTOL-37 (Notice of Allowability) of such informalities. Extensions of time
 under 37 CFR
 1.136(a) or (b) are NOT available to correct such
 informalities. Any such informalities must be corrected and the issue fee and the
 publication fee, if required, must be paid within the 3-month period. If a Notice
 Requiring Inventor’s Oath or Declaration (PTOL-2306) is sent with the Notice of
 Allowability, the required inventor’s oath or declaration must be submitted no
 later than the payment of the issue fee. See 35 U.S.C.
 115(f) .
 

 

 

 
 710.03 [Reserved]

 

 

 
 710.04 Two Periods Running [R-08.2012]

 There sometimes arises a situation where two different periods for reply
 are running against an application, the one limited by the regular statutory period, the
 other by the limited period set in a subsequent Office action. The running of the first
 period is not suspended nor affected by an ex parte limited time
 action or even by an appeal therefrom. For an exception involving suggested claims, see
 MPEP Chapter
 2300 .
 

 
 710.04(a) Copying Patent Claims [R-08.2012]

 Where, in an application in which there is an unanswered rejection of
 record, claims are copied from a patent and all of these claims are rejected there
 results a situation where two different periods for reply are running against the
 application. One period, the first, is the regular statutory period of the unanswered
 rejection of record, the other period is the limited period set for reply to the
 rejection (either first or final). The date of the last unanswered Office action on
 the claims other than the copied patent claims is the controlling date of the
 statutory period. See Ex parte Milton, 63 USPQ 132 (P.O. Super
 Exam. 1938). See also MPEP Chapter 2300 .
 

 

 

 
 710.05 Period Ending on Saturday, Sunday, or a Federal
 Holiday [R-07.2022]
 

 
 35 U.S.C. 21 
 Filing date and day for taking action. 

 *****

 
 (b) When the day, or the last day, for taking any action or paying
 any fee in the United States Patent and Trademark Office falls on Saturday,
 Sunday, or a Federal holiday within the District of Columbia the action may be
 taken, or the fee paid, on the next succeeding secular or business day. 
 

 
 

 
 37 CFR 1.7 Times for taking action; Expiration on Saturday, Sunday, or Federal
 holiday. 

 
 (a) Whenever periods of time are specified in this part in days,
 calendar days are intended. When the day, or the last day fixed by statute or
 by or under this part for taking any action or paying any fee in the United
 States Patent and Trademark Office falls on Saturday, Sunday, or on a Federal
 holiday within the District of Columbia, the action may be taken, or the fee
 paid, on the next succeeding business day which is not a Saturday, Sunday, or a
 Federal holiday. See § 90.3 of this chapter for
 time for appeal or for commencing civil action.
 

 (b) If the day that is twelve months after the filing date of a
 provisional application under 35 U.S.C. 111(b) and
 §
 1.53(c) falls on Saturday, Sunday, or on a Federal
 holiday within the District of Columbia, the period of pendency shall be
 extended to the next succeeding secular or business day which is not a
 Saturday, Sunday, or a Federal holiday.
 

 
 

 The federal holidays under 5 U.S.C. 6103(a) are New Year’s Day, January
 1; Birthday of Martin Luther King, JR., the third Monday in January; Washington’s
 Birthday, the third Monday in February; Memorial Day, the last Monday in May; Juneteenth
 National Independence Day, June 19; Independence Day, July 4; Labor Day, the first
 Monday in September; Columbus Day, the second Monday in October; Veteran’s Day, November
 11; Thanksgiving Day, the fourth Thursday in November; and Christmas Day, December 25.
 Whenever a federal holiday falls on a Sunday, the following day (Monday) is also a
 federal holiday. Exec. Order No. 11582, 36 FR 2957 (February 11, 1971); 5 U.S.C.
 6103.
 

 When a federal holiday falls on a Saturday, the preceding day, Friday,
 is considered to be a federal holiday and the U.S. Patent and Trademark Office will be
 closed for business on that day (5 U.S.C. 6103). Accordingly, any action or fee due on
 such a federal holiday Friday or Saturday is to be considered timely if the action is
 taken, or the fee paid, on the next succeeding day which is not a Saturday, Sunday, or a
 federal holiday. For example, a non-final Office action was mailed on May 31, 2019 and
 set a 3-month shortened statutory period that expired on Saturday, August 31, 2019.
 Monday, September 2, 2019 is a federal holiday. Tuesday, September 3, 2019 is a normal
 business day when the Office is open. In this situation, any action taken or fee paid on
 Tuesday, September 3, 2019, would be considered timely. The period for reply is extended
 to Tuesday, September 3, 2019 due to 35 U.S.C. 21 and 37 CFR 1.7 . See
 MPEP §
 711.04(a) for examples in calculating the last day of the
 period for reply to determine if an action taken or fee paid is considered timely.
 

 Pursuant to 5 U.S.C. 6103(c), Inauguration Day (January 20, every 4
 years) “is a legal public holiday for the purpose of statutes relating to pay and leave
 of employees . . .” employed in the District of Columbia and surrounding areas. It
 further provides that when Inauguration Day falls on a Sunday, the next day selected for
 the observance of the Inauguration is considered a legal public holiday for purposes of
 this subsection. No provision is made for an Inauguration Day falling on a Saturday.
 

 When an amendment is filed a day or two later than the expiration of the
 period fixed by statute, care should be taken to ascertain whether the last day of that
 period was Saturday, Sunday, or a federal holiday and if so, whether the amendment was
 filed or the fee paid on the next succeeding day which is not a Saturday, Sunday, or a
 federal holiday.
 

 An amendment received on such succeeding day which was due on Saturday,
 Sunday, or federal holiday is endorsed with the date of receipt. The Saturday, Sunday,
 or federal holiday is also indicated.
 

 The period of pendency of a provisional application will be extended to
 the next succeeding secular or business day which is not a Saturday, Sunday, or a
 federal holiday, if the day that is twelve months after the filing date of the
 provisional application under 35 U.S.C. 111(b) and
 37 CFR
 1.53(c) falls on Saturday, Sunday, or a federal holiday within the
 District of Columbia. See 35 U.S.C. 119(e)(3) and
 MPEP §
 201.04 .
 

 

 
 710.06 Situations When Reply Period Is Reset or Restarted [R-01.2024]

 Where an Office action contains an error that affects applicant’s
 ability to reply to the Office action and this error is called to the attention of the
 Office within 1 month of the mail date of the action, the Office will restart the
 previously set period for reply to run from the date the error is corrected, if
 requested to do so by applicant. If the error is brought to the attention of the Office
 within the period for reply set in the Office action but more than 1 month after the
 date of the Office action, the Office will set a new period for reply, if requested to
 do so by the applicant, to substantially equal the time remaining in the reply period.
 For example, if the error is brought to the attention of the Office 5 weeks after
 mailing the action, then the Office would set a new 2-month period for reply. The new
 period for reply must be at least 1 month and would run from the date the error is
 corrected. Certain instances of the following may affect the ability of the applicant to
 reply: invalid citation(s) that are clearly erroneous (for example, where the cited
 reference does not exist); illegible Office action or portion thereof (e.g., garbled
 text); non-English language Office action; or non-patent literature or foreign
 references not being provided ( MPEP § 707.05(a) ). See
 MPEP §
 707.05(g) for the manner of correcting the record where there
 has been an erroneous citation.
 

 Where for any reason it becomes necessary to remail any action
 ( MPEP §
 707.13 ), applicant’s period for reply will be restarted to
 correspond to the remailing date of the action.
 

 A supplementary action after a rejection explaining the references more
 explicitly or giving the reasons more fully, even though no further references are
 cited, establishes a new date from which the statutory period runs.
 

 If the error in citation or other defective Office action is called to
 the attention of the Office after the expiration of the period for reply, the period
 will not be restarted and any appropriate extension fee will be required to render a
 reply timely. The Office letter correcting the error will note that the time period for
 reply remains as set forth in the previous Office action.
 

 See MPEP
 §§ 505 , 512 , and 513 for U.S. Patent
 and Trademark Office practice on date stamping documents.
 

 In the event that correspondence from the Office is received late (A)
 due to delays in the U.S. Postal Service, or (B) because the mail was delayed in leaving
 the USPTO (the postmark date is later than the mail date printed on the correspondence),
 applicants may petition to reset the period for reply, which petition shall be evaluated
 according to the guidelines which follow. Where the Office action involved in the
 petition was mailed by a Technology Center (TC), the authority to decide such petitions
 has been delegated to the TC Director. See Notice entitled “Petition to reset a period
 for response due to late receipt of a PTO action,” 1160 OG 14 (March 1, 1994).
 

 Where a Customer has registered as a participant in the
 e-Office Action program to receive email notifications of Office communications and the
 participant did not receive an email notification or the email notification is delivered
 a few days later than the mailroom/notification date, the participant should contact the
 Patent Electronic Business Center (Patent EBC) by telephone to request the Office take
 appropriate corrective action. The Office will send the participant an email
 notification if an email notification was not previously sent to the designated email
 addresses. Any period for reply (except for the 63-day period under 37 CFR
 90.3 ) set forth in the Office communication will be restarted when
 the Office sends the email notification. However, if the Office did send an email
 notification to each of the email addresses designated by the participant, the Office
 will not send a new email notification, and any time period for reply set forth in the
 Office communication will not be restarted. If the date of an email notification is a
 few days later than the mailroom/notification date and the participant contacts the
 Patent EBC within one month from the email date, the Office will reset the time period
 for reply (except for the 63-day period under 37 CFR
 90.3 ) to the original email date.
 

 I. PETITIONS TO RESET A PERIOD FOR REPLY DUE TO LATE RECEIPT OF AN OFFICE
 ACTION The Office will grant a petition to restart the previously set period
 for reply to an Office action to run from the date of receipt of the Office action at
 the correspondence address when the following criteria are met:
 

 
 (A) the petition is filed within 2 weeks of the date of receipt of
 the Office action at the correspondence address;
 

 (B) a substantial portion of the set reply period had elapsed on
 the date of receipt (e.g., at least 1 month of a 2- or 3-month reply period had
 elapsed); and
 

 (C) the petition includes (1) evidence showing the date of receipt
 of the Office action at the correspondence address (e.g., a copy of the Office
 action having the date of receipt of the Office action at the correspondence
 address stamped thereon, a copy of the envelope (which contained the Office
 action) having the date of receipt of the Office action at the correspondence
 address stamped thereon, etc.), and (2) a statement setting forth the date of
 receipt of the Office action at the correspondence address and explaining how
 the evidence being presented establishes the date of receipt of the Office
 action at the correspondence address.
 

 
 There is no statutory requirement that a shortened statutory period
 of longer than 30 days to reply to an Office action be reset due to delay in the mail
 or in the Office. However, when a substantial portion of the set reply period had
 elapsed on the date of receipt at the correspondence address (e.g., at least 1 month
 of a 2- or 3-month period had elapsed), the procedures set forth above for late
 receipt of action are available. Where an Office action was received with less than 2
 months remaining in a shortened statutory period of 3 months the period may be
 restarted from the date of receipt. Where the period remaining is between 2 and 3
 months, the period will be reset only in extraordinary situations, e.g., complex
 Office action suggesting submission of comparative data.
 

 II. PETITIONS TO RESET A PERIOD FOR REPLY DUE TO A POSTMARK DATE LATER THAN THE
 MAIL DATE PRINTED ON AN OFFICE ACTION The Office will grant a petition to restart the previously set period
 for reply to an Office action to run from the postmark date shown on the Office
 mailing envelope which contained the Office action when the following criteria are
 met:
 

 
 (A) the petition is filed within 2 weeks of the date of receipt of
 the Office action at the correspondence address;
 

 (B) the reply period was for payment of the issue fee, or the reply
 period set was 1 month or 30 days; and 
 

 (C) the petition includes (1) evidence showing the date of receipt
 of the Office action at the correspondence address (e.g., copy of the Office
 action having the date of receipt of the Office action at the correspondence
 address stamped thereon, etc.), (2) a copy of the envelope which contained the
 Office action showing the postmark date, and (3) a statement setting forth the
 date of receipt of the Office action at the correspondence address and stating
 that the Office action was received in the postmarked envelope.
 

 
 The provisions of 37 CFR 1.8 and 1.10 apply to
 the filing of the above-noted petitions with regard to the requirement that the
 petition be filed within 2 weeks of the date of receipt of the Office action.
 

 The showings outlined above may not be sufficient if there are
 circumstances that point to a conclusion that the Office action may have been delayed
 after receipt rather than a conclusion that the Office action was delayed in the mail
 or in the Office. 
 

 

 [top] 

 

 

 
 

 
 

 

 

 

 
 
 
 701-Statutory Authority for Examination 

 702-Requisites of the Application 
 702.01-Obviously Informal Cases 

 
 

 703-[Reserved] 

 704-Search and Requirements for Information 
 704.01-Search 

 704.02-704.09-[Reserved] 

 704.10-Requirements for Information 

 704.11-What Information May Be Required 
 704.11(a)-Examples of Information Reasonably Required 

 704.11(b)-When May a Requirement for Information Be Made 

 
 

 704.12-Replies to a Requirement for Information 
 704.12(a)-Relationship of Requirement for Information to Duty of Disclosure 

 704.12(b)-What Constitutes a Complete Reply 

 704.12(c)-Treatment of an Incomplete Reply 

 
 

 704.13-Time Periods for Reply 

 704.14-Making a Requirement for Information 
 704.14(a)-Format of the Requirement 

 704.14(b)-Examiner’s Obligation Following Applicant’s Reply 

 704.14(c)-Petitions to Requirements Under 37 CFR 1.105 

 704.14(d)-Relationship to Information Disclosure Statements 

 
 

 
 

 705-Patentability Reports 
 705.01-Instructions re Patentability Reports 
 705.01(a)-Nature of P.R., Its Use and Disposal 

 705.01(b)-Sequence of Examination 

 705.01(c)-Counting and Recording P.R.s 

 705.01(d)-[Reserved] 

 705.01(e)-Limitation as to Use 

 705.01(f)-Interviews With Applicants 

 
 

 
 

 706-Rejection of Claims 
 706.01-Contrasted With Objections 

 706.02-Rejection on Prior Art 
 706.02(a)-[Reserved] 
 706.02(a)(1)-[Reserved] 

 706.02(a)(2)-[Reserved] 

 
 

 706.02(b)-[Reserved] 
 706.02(b)(1)-[Reserved] 

 706.02(b)(2)-[Reserved] 

 
 

 706.02(c)-[Reserved] 
 706.02(c)(1) -[Reserved] 

 706.02(c)(2)-[Reserved] 

 
 

 706.02(d)-[Reserved] 

 706.02(e)-[Reserved] 

 706.02(f)-[Reserved] 
 706.02(f)(1)-[Reserved] 

 706.02(f)(2)-[Reserved] 

 
 

 706.02(g)-[Reserved] 

 706.02(h)-[Reserved] 

 706.02(i)-[Reserved] 

 706.02(j)-[Reserved] 

 706.02(k)-[Reserved] 

 706.02(l)-[Reserved] 
 706.02(l)(1)-[Reserved] 

 706.02(l)(2)-[Reserved] 

 706.02(l)(3)-[Reserved] 

 
 

 706.02(m)-[Reserved] 

 706.02(n)-[Reserved] 

 
 

 706.03-Rejections Not Based on Prior Art 
 706.03(a)-[Reserved] 

 706.03(b)-[Reserved] 

 706.03(c)-[Reserved] 

 706.03(d)-[Reserved] 

 706.03(e)-[Reserved] 

 706.03(f) - 706.03(j)-[Reserved] 

 706.03(k)-[Reserved] 

 706.03(l) - 706.03(n)-[Reserved] 

 706.03(o)-[Reserved] 

 706.03(p) - 706.03(r)-[Reserved] 

 706.03(s)-[Reserved] 

 706.03(t)-[Reserved] 

 706.03(u)-[Reserved] 

 706.03(v)-[Reserved] 

 706.03(w)-[Reserved] 

 706.03(x)-[Reserved] 

 706.03(y)-[Reserved] 

 
 

 706.04-Rejection of Previously Allowed Claims 

 706.05-Rejection After Allowance of Application 

 706.06-Rejection of Claims Copied From Patent 

 706.07-Final Rejection 
 706.07(a)-Final Rejection, When Proper on Second Action 

 706.07(b)-Final Rejection, When Proper on First Action 

 706.07(c)-Final Rejection, Premature 

 706.07(d)-Final Rejection, Withdrawal of, Premature 

 706.07(e)-Withdrawal of Final Rejection, General 

 706.07(f)-Time for Reply to Final Rejection 

 706.07(g)-Transitional After-Final Practice 

 706.07(h)-Request for Continued Examination (RCE) Practice 

 
 

 
 

 707-Examiner’s Letter or Action 
 707.01-Primary Examiner Indicates Action for New Assistant 

 707.02-Applications Up for Third Action and 5-Year Applications 

 707.03‑707.04-[Reserved] 

 707.05-Citation of References 
 707.05(a)-Copies of Cited References 

 707.05(b)-Citation of Related Art and Information by Applicants 

 707.05(c)-Order of Listing 

 707.05(d)-Reference Cited in Subsequent Actions 

 707.05(e)-Data Used in Citing References 

 707.05(f)-Non-Patent Documents Having a Lengthy Citation 

 707.05(g)-Incorrect Citation of References 

 
 

 707.06-Citation of Decisions, Orders Memorandums, and Notices 

 707.07-Completeness and Clarity of Examiner’s Action 
 707.07(a)-Complete Action on Formal Matters 

 707.07(b) - 707.07(c)-[Reserved] 

 707.07(d)-Language To Be Used in Rejecting Claims 

 707.07(e)-Note All Outstanding Requirements 

 707.07(f)-Answer All Material Traversed 

 707.07(g)-Piecemeal Examination 

 707.07(h)-Notify of Inaccuracies in Amendment 

 707.07(i)-Each Claim To Be Mentioned in Each Office Action 

 707.07(j)-State When Claims Are Allowable 

 707.07(k)-Numbering Paragraphs 

 707.07(l)-Comment on Examples 

 
 

 707.08-Reviewing and Initialing by Assistant Examiner 

 707.09-Signing by Primary or Other Authorized Examiner 

 707.10-Entry 

 707.11-Date 

 707.12-Mailing 

 707.13-Returned Office Action 

 
 

 708-Order of Examination 
 708.01-List of Special Cases 

 708.02-Petition To Make Special 
 708.02(a)-Accelerated Examination 

 708.02(b)-Prioritized Examination 

 708.02(c)-Patent Prosecution Highway Program 

 
 

 708.03-Examiner Tenders Resignation 

 
 

 709-Suspension of Action 
 709.01-Overlapping Applications by Same Applicant or Owned by Same Assignee 

 
 

 710-Period for Reply 
 710.01-Statutory Period 
 710.01(a)-Statutory Period, How Computed 

 
 

 710.02-Shortened Statutory Period and Time Limit Actions Computed 
 710.02(a)-[Reserved] 

 710.02(b)-Shortened Statutory Period: Situations in Which Used 

 710.02(c)-Specified Time Limits: Situations in Which Used 

 710.02(d)-Difference Between Shortened Statutory Periods for Reply and Specified Time Limits 

 710.02(e)-Extension of Time 

 
 

 710.03-[Reserved] 

 710.04-Two Periods Running 
 710.04(a)-Copying Patent Claims 

 
 

 710.05-Period Ending on Saturday, Sunday, or a Federal Holiday 

 710.06-Situations When Reply Period Is Reset or Restarted 

 
 

 711-Abandonment of Patent Application 
 711.01-Express or Formal Abandonment 

 711.02-Failure To Take Required Action During Statutory Period 
 711.02(a)-Insufficiency of Reply 

 711.02(b)-Special Situations Involving Abandonment 

 711.02(c)-Termination of Proceedings 

 
 

 711.03-Reconsideration of Holding of Abandonment; Revival 
 711.03(a)-Holding Based on Insufficiency of Reply 

 711.03(b)-Holding Based on Failure To Reply Within Period 

 711.03(c)-Petitions Relating to Abandonment 

 711.03(d)-Examiner’s Statement on Petition To Set Aside Examiner’s Holding 

 
 

 711.04-Public Access to Abandoned Applications 
 711.04(a)-Date of Abandonment 

 711.04(b)-Ordering of Patented and Abandoned Files 

 711.04(c)-Notifying Applicants of Abandonment 

 
 

 711.05-Letter of Abandonment Received After Application Is Allowed 

 711.06-Abstracts, Abbreviatures, and Defensive Publications 
 711.06(a)-Citation and Use of Abstracts, Abbreviatures, and Defensive Publications as References 

 
 

 
 

 712-[Reserved] 

 713-Interviews 
 713.01-General Policy, How Conducted 

 713.02-Interviews Prior to First Official Action 

 713.03-Interview for “Sounding Out” Examiner Not Permitted 

 713.04-Substance of Interview Must Be Made of Record 

 713.05-Interviews Prohibited or Granted, Special Situations 

 713.06-No Inter Partes Questions Discussed Ex Parte 

 713.07-Exposure of Other Cases 

 713.08-Demonstration, Exhibits, Models 

 713.09-Interviews Between Final Rejection and Notice of Appeal 

 713.10-Interview Preceding Filing Amendment Under 37 CFR 1.312 

 
 

 714-Amendments, Applicant’s Action 
 714.01-Signatures to Amendments 
 714.01(a)-Unsigned or Improperly Signed Amendment 

 714.01(b)-[Reserved] 

 714.01(c)-Signed by Attorney or Agent Not of Record 

 714.01(d)-Amendment Signed by Applicant but Not by Attorney or Agent of Record 

 714.01(e)-Amendments Before First Office Action 

 
 

 714.02-Must Be Fully Responsive 

 714.03-Amendments Not Fully Responsive, Action To Be Taken 
 714.03(a)-Supplemental Amendment 

 
 

 714.04-Claims Presented in Amendment With No Attempt To Point Out Patentable Novelty 

 714.05-Examiner Should Immediately Review 

 714.06-[Reserved] 

 714.07-Amendments Not in Permanent Ink 

 714.08-714.09-[Reserved] 

 714.10-Claims Added in Excess of Claims Previously Paid For 

 714.11-Amendment Filed During Interference Proceedings 

 714.12-Amendments and Other Replies After Final Rejection or Action 

 714.13-Amendments and Other Replies After Final Rejection or Action, Procedure Followed 

 714.14-Amendments After Allowance of All Claims 

 714.15-Amendment Received in Technology Center After Mailing of Notice of Allowance 

 714.16-Amendment After Notice of Allowance, 37 CFR 1.312 
 714.16(a)-Amendments Under 37 CFR 1.312, Copied Patent Claims 

 714.16(b)-Amendments Under 37 CFR 1.312 Filed With a Motion Under 37 CFR 41.208 

 714.16(c)-Amendments Under 37 CFR 1.312, Additional Claims 

 714.16(d)-Amendments Under 37 CFR 1.312, Handling 

 714.16(e)-Amendments Under 37 CFR 1.312, Entry in Part 

 
 

 714.17-Amendment Filed After the Period for Reply Has Expired 

 714.18-Entry of Amendments 

 714.19-List of Amendments, Entry Denied 

 714.20-List of Amendments Entered in Part 

 714.21-Amendments Inadvertently Entered, No Legal Effect 

 714.22-714.24-[Reserved] 

 714.25-Discourtesy of Applicant or Attorney 

 
 

 715-Swearing Behind a Reference — Affidavit or Declaration Under 37 CFR 1.131(a) 
 715.01-37 CFR 1.131(a) Affidavits Versus 37 CFR 1.132 Affidavits 
 715.01(a)-Reference Is a Patent or Published Application Naming Different Inventive Entity With at Least One Common Inventor 

 715.01(b)-Reference and Application Have Common Assignee 

 715.01(c)-Reference Is Publication of Inventor’s Own Invention 

 715.01(d)-Activities Applied Against the Claims 

 
 

 715.02-How Much of the Claimed Invention Must Be Shown, Including the General Rule as to Generic Claims 

 715.03-Genus-Species, Practice Relative to Cases Where Predictability Is in Question 

 715.04-Who May Make Affidavit or Declaration Under 37 CFR 1.131(a); Formal Requirements of Affidavits and Declarations 

 715.05-U.S. Patent or Application Publication Claiming Same Invention 

 715.06-[Reserved] 

 715.07-Facts and Documentary Evidence 
 715.07(a)-Diligence 

 715.07(b)-Interference Testimony Sometimes Used 

 715.07(c)-Acts Relied Upon Must Have Been Carried Out in This Country or a NAFTA or WTO Member Country 

 715.07(d)-Disposition of Exhibits 

 
 

 715.08-Decided by Primary Examiner 

 715.09-Timely Presentation 

 715.10-Review of Affidavit or Declaration for Evidence of Prior Public Use or Sale or Failure to Disclose Best Mode 

 
 

 716-Affidavits or Declarations Under 37 CFR 1.132 and Other Evidence Traversing Rejections 
 716.01-Generally Applicable Criteria 
 716.01(a)-Objective Evidence of Nonobviousness 

 716.01(b)-Nexus Requirement and Evidence of Nonobviousness 

 716.01(c)-Probative Value of Objective Evidence 

 716.01(d)-Weighing Objective Evidence 

 
 

 716.02-Allegations of Unexpected Results 
 716.02(a)-Evidence Must Show Unexpected Results 

 716.02(b)-Burden on Applicant 

 716.02(c)-Weighing Evidence of Expected and Unexpected Results 

 716.02(d)-Unexpected Results Commensurate in Scope With Claimed Invention 

 716.02(e)-Comparison With Closest Prior Art 

 716.02(f)-Advantages Disclosed or Inherent 

 716.02(g)-[Reserved] 

 
 

 716.03-Commercial Success 
 716.03(a)-Commercial Success Commensurate in Scope With Claimed Invention 

 716.03(b)-Commercial Success Derived From Claimed Invention 

 
 

 716.04-Long-Felt Need and Failure of Others 

 716.05-Skepticism of Experts 

 716.06-Copying 

 716.07-Inoperability of References 

 716.08-Utility and Operability of Applicant’s Disclosure 

 716.09-Sufficiency of Disclosure 

 716.10-Attribution Affidavit or Declaration to Overcome Rejection Under Pre-AIA 35 U.S.C. 102 or 103 

 
 

 717-Prior Art Exceptions under AIA 35 U.S.C. 102(b)(1) and (2) 
 717.01-Affidavit or Declaration Under 37 CFR 1.130 
 717.01(a) -Declarations or Affidavits under 37 CFR 1.130(a) – Attribution 
 717.01(a)(1) -Evaluation of Declarations or Affidavits under 37 CFR 1.130(a) 

 
 

 717.01(b) -Declarations or Affidavits under 37 CFR 1.130(b) – Prior Public Disclosure 
 717.01(b)(1) -Evaluation of Declarations or Affidavits under 37 CFR 1.130(b) 

 717.01(b)(2) -Determining if the Subject Matter of the Intervening Disclosure is the Same as the Subject Matter of the Inventor–Originated
 Prior Public Disclosure 

 
 

 717.01(c) -Who May Make Affidavit or Declaration; Formal Requirements of Affidavits and Declarations 

 717.01(d)-U.S. Patent or Application Publication Claiming Same Invention 

 717.01(e) -Passed Upon (or Decided by) by Primary Examiner 

 717.01(f) -Seasonable (or Timely) Presentation 

 
 

 717.02 -Prior Art Exception for Commonly Owned or Joint Research Agreement Subject Matter under AIA 35 U.S.C. 102(b)(2)(C) 
 717.02(a) -Invoking the Prior Art Exception under 35 U.S.C. 102(b)(2)(C) 

 717.02(b) -Evaluating Whether the Prior Art Exception under AIA 35 U.S.C. 102(b)(2)(C) is Properly Invoked 

 717.02(c) -Examination Procedure With Respect to the Prior Art Exception under AIA 35 U.S.C. 102(b)(2)(C) 

 717.02(d) -Form Paragraphs With Respect to the Prior Art Exception under AIA 35 U.S.C. 102(b)(2)(C) 

 
 

 
 

 718-Affidavit or Declaration to Disqualify Commonly Owned Patent as Prior Art, 37 CFR 1.131(c) 

 719-File Wrapper 
 719.01-Papers in Image File Wrapper 

 719.02-Residence of Inventor Changed 

 719.03-Classification During Examination 

 719.04-Index of Claims 

 719.05-Field of Search 

 
 

 720-Public Use Proceedings 

 721‑723-[Reserved] 

 724-Trade Secret, Proprietary, and Protective Order Materials 
 724.01-Completeness of the Patent File Wrapper 

 724.02-Method of Submitting Trade Secret, Proprietary, and/or Protective Order Materials 

 724.03-Types of Trade Secret, Proprietary, and/or Protective Order Materials Submitted Under MPEP § 724.02 

 724.04-Office Treatment and Handling of Materials Submitted Under MPEP § 724.02 
 724.04(a)-Materials Submitted in an Application Covered by 35 U.S.C. 122 

 724.04(b)-Materials Submitted in Reissue Applications Open to the Public Under 37 CFR 1.11(b) 

 724.04(c)-Materials Submitted in Reexamination File Open to the Public Under 37 CFR 1.11(d) 

 
 

 724.05-Petition To Expunge Information or Copy of Papers in Application File 

 724.06-Handling of Petitions To Expunge Information or Copy of Papers in Application File 

 
 

 

 

 
 

 
 
 

 
 

 

 
 
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