(76)               Procedures for Restarting Response Periods

   The purpose of this notice is to announce revised procedures for 
restarting response periods set in patent related matters. Occasionally,
mail from the Patent and Trademark Office (PTO) is received late at the 
correspondence address or the mail is delayed in leaving the PTO.

   The following revised procedures are effective immediately and will be
followed in processing a petition to reset a period for response due to
late receipt of a PTO action or due to a postmark date which is later than
the mail date printed on a PTO action. The authority to decide such
petitions is delegated to the Group Director, where the PTO action
involved in the petition was mailed by a patent examining group.
   
  Petition to reset a period for response due to late receipt of a PTO 
action

   The PTO will grant a petition to restart the previously set period for
response to a PTO action to run from the date of receipt of the PTO action
at the correspondence address when the following criteria are met: (1) the
petition is filed within two weeks of the date of receipt of the PTO
action at the correspondence address; (2) a substantial portion of the set
response period had elapsed on the date of receipt (e.g., at least one
month of a two or three month response period had elapsed); and (3) the
petition includes (a) evidence showing the date of receipt of the PTO
action at the correspondence address (e.g., a copy of the PTO action
having the date of receipt of the PTO action at the correspondence address
stamped thereon, a copy of the envelope (which contained the PTO action)
having the date of receipt of the PTO action at the correspondence address
stamped thereon, etc.), and (b) a statement (verified if made by other
than a registered practitioner) setting forth the date of receipt of the
PTO action at the correspondence address and explaining how the evidence
being presented establishes the date of receipt of the PTO action at the
correspondence address.
  
   There is no statutory requirement that a shortened statutory period of
longer than thirty days to respond to a PTO action be reset due to delay
in the mail or in the PTO. However, when a substantial portion of the set
response period had elapsed on the date of receipt at the correspondence
address (e.g., at least one month of a two or three month response period
had elapsed), the procedures set forth above for late receipt of a PTO
action are available. Where a PTO action was received with less than two
months remaining in a shortened statutory period of three months, the
period may be restarted from the date of receipt. Where the period
remaining is between two and three months, the period will be reset only
in extraordinary situations’e.g., complex PTO action suggesting submission
of comparative data.
   
   Petitions to reset a period for response due to a postmark date later than
the mail date printed on a PTO action
The PTO will grant a petiton to restart the previously set period for
response to a PTO action to run from the postmark date shown on the PTO
mailing envelope which contained the PTO action when the following
criteria are met: (1) the petition is filed within two weeks of the date
of receipt of the PTO action at the correspondence address; (2) the
response period was for payment of the issue fee1šfu1Ė; or the response
period set was one month or thirty days2šfu2Ė; and (3) the petition
includes (a) evidence showing the date of receipt of the PTO action at the
correspondence address (e.g., a copy of the PTO action having the date of
receipt of the PTO action at the correspondence address stamped thereon,
etc.), (b) a copy of the envelope which contained the PTO action showing
the postmark date, and (c) a statement (verified if made by other than a
registered practitioner) setting forth the date of receipt of the PTO
action at the correspondence address and stating that the PTO action was
received in the post-marked envelope.
   
   The provision 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 two weeks of the date of receipt of the PTO action.

   The showings outlined above may not be sufficient if there are
circumstances that point to a conclusion that the PTO action may have been
delayed after receipt rather than a conclusion that the PTO action was
delayed in the mail or in the PTO.
   
February 3, 1994                                       CHARLES E. VAN HORN
                                  Patent Policy and Projects Administrator
                          Office of the Assistant Commissioner for Patents

[1] 35 USC 151 permits payment of the issue fee within three months
of the date that the Notice of Allowance is mailed to the applicant.

[2] 235 USC 133 does not permit a response period to be less than
thirty days from the date the PTO action is given or mailed to the
applicant.

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