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511    Postal Service Interruptions and Emergencies [R-11.2013]

In the event of a postal interruption or emergency, an announcement will be placed on the USPTO Web site at www.uspto.gov and a notice will be published in the Official Gazette, providing instructions about the filing of patent applications, and other papers related to patent applications and patents.

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

  • (a) The Director may by rule prescribe that any paper or fee required to be filed in the Patent and Trademark Office will be considered filed in the Office on the date on which it was deposited with the United States Postal Service or would have been deposited with the United States Postal Service but for postal service interruptions or emergencies designated by the Director.

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37 C.F.R. 1.10   Filing of correspondence by “Express Mail.”

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  • (g) Any person who mails correspondence addressed as set out in § 1.1(a) to the Office with sufficient postage utilizing the “Express Mail Post Office to Addressee” service of the USPS, but has the correspondence returned by the USPS due to an interruption or emergency in “Express Mail” service, may petition the Director to consider such correspondence as filed on a particular date in the Office, provided that:
    • (1) The petition is filed promptly after the person becomes aware of the return of the correspondence;
    • (2) The number of the “Express Mail” mailing label was placed on the paper(s) or fee(s) that constitute the correspondence prior to the original mailing by “Express Mail”;
    • (3) The petition includes the original correspondence or a copy of the original correspondence showing the number of the “Express Mail” mailing label thereon and a copy of the “Express Mail” mailing label showing the “date-in”; and
    • (4) The petition includes a statement which establishes, to the satisfaction of the Director, the original deposit of the correspondence and that the correspondence or copy of the correspondence is the original correspondence or a true copy of the correspondence originally deposited with the USPS on the requested filing date. The Office may require additional evidence to determine if the correspondence was returned by the USPS due to an interruption or emergency in “Express Mail” service.
  • (h) Any person who attempts to mail correspondence addressed as set out in § 1.1(a) to the Office with sufficient postage utilizing the “Express Mail Post Office to Addressee” service of the USPS, but has the correspondence refused by an employee of the USPS due to an interruption or emergency in “Express Mail” service, may petition the Director to consider such correspondence as filed on a particular date in the Office, provided that:
    • (1) The petition is filed promptly after the person becomes aware of the refusal of the correspondence;
    • (2) The number of the “Express Mail” mailing label was placed on the paper(s) or fee(s) that constitute the correspondence prior to the attempted mailing by “Express Mail”;
    • (3) The petition includes the original correspondence or a copy of the original correspondence showing the number of the “Express Mail” mailing label thereon; and
    • (4) The petition includes a statement by the person who originally attempted to deposit the correspondence with the USPS which establishes, to the satisfaction of the Director, the original attempt to deposit the correspondence and that the correspondence or copy of the correspondence is the original correspondence or a true copy of the correspondence originally attempted to be deposited with the USPS on the requested filing date. The Office may require additional evidence to determine if the correspondence was refused by an employee of the USPS due to an interruption or emergency in “Express Mail” service.
      • (i) Any person attempting to file correspondence under this section that was unable to be deposited with the USPS due to an interruption or emergency in “Express Mail” service which has been so designated by the Director, may petition the Director to consider such correspondence as filed on a particular date in the Office, provided that:
    • (1) The petition is filed in a manner designated by the Director promptly after the person becomes aware of the designated interruption or emergency in “Express Mail” service;
    • (2) The petition includes the original correspondence or a copy of the original correspondence; and
    • (3) The petition includes a statement which establishes, to the satisfaction of the Director, that the correspondence would have been deposited with the USPS but for the designated interruption or emergency in “Express Mail” service, and that the correspondence or copy of the correspondence is the original correspondence or a true copy of the correspondence originally attempted to be deposited with the USPS on the requested filing date.

I.   “EXPRESS MAIL” RENAMED “PRIORITY MAIL EXPRESS”

Effective July 28, 2013, the United States Postal Service (USPS) changed the name of “Express Mail” to “Priority Mail Express.” All characteristics of the “Priority Mail Express” service are the same as those of the former “Express Mail” service (although the mailing labels differ). References to “Express Mail” or “Express Mail from the USPS in accordance with 37 CFR 1.10” throughout this Manual should be construed as applicable to the “Priority Mail Express” service of the USPS on or after July 28, 2013.

The addresses that should be used for “Express Mail” sent to the U.S. Patent and Trademark Office are set forth in 37 CFR 1.1 (see MPEP § 501). The Office does not have resources for picking up any mail. Therefore mail should NOT be sent using the “Hold for Pickup” service option (whereby the mail is retained at the destination postal facility for retrieval by the addressee). Mail sent using the “Hold for pickup” service will not reach the Office.

See MPEP § 513 for the use of the Priority Mail Express (formerly “Express Mail”) Mailing procedure of 37 CFR 1.10.

II.   PETITION DUE TO A POSTAL SERVICE INTERRUPTION OR EMERGENCY

37 CFR 1.10(i) provides a procedure under which applicant may petition the Director to have correspondence (papers and fees) which was unable to be deposited with the United States Postal Service (USPS) because of an interruption or emergency in "Express Mail" (Priority Mail Express) service which is so designated by the Director considered as having been filed on a particular date in the Office. Authority for such a practice is found in 35 U.S.C. 21(a). In addition, the Director has designated certain events as a postal service interruption or emergency by rule (37 CFR 1.10(g) and (h)). 37 CFR 1.10(g) provides a procedure under which applicant may petition the Director to have correspondence that was returned by the USPS due to an interruption or emergency in "Express Mail" service considered as filed on a particular date in the Office. 37 CFR 1.10(h) provides a procedure under which applicant may petition the Director to have correspondence that was refused by an employee of the USPS due to an interruption or emergency in "Express Mail" service considered as filed on a particular date in the Office. For more information on filing a petition under 37 CFR 1.10(g), (h), or (i), see MPEP § 513, especially subsections IX-XI.

Applicants are cautioned that the provisions of 35 U.S.C. 21(a) and 37 CFR 1.10(g) to (i) only apply to postal interruptions and emergencies. The provisions of 35 U.S.C. 21(a) and 37 CFR 1.10(g) to (i) do not provide for granting of a filing date to correspondence as of the date on which it would have been filed but for other exigencies, such as the unavailability of a computer or word processing equipment, or the inaccessibility of an office or building other than a USPS facility. 35 U.S.C. 21(a) requires, in part, that “any paper or fee required to be filed in the Patent and Trademark Office…would have been deposited with the United States Postal Service but for postal service interruptions or emergencies designated by the Director.” The statute requires that the correspondence was complete and ready to be deposited with the USPS on the filing date requested (e.g., complete application papers have been prepared and printed) and that the correspondence could not have been deposited with the USPS on the requested filing date for the sole reason that the postal service was not available due to the interruption or emergency designated by the Office.

III.   ALTERNATIVES TO FILING CORRESPONDENCE VIA PRIORITY MAIL EXPRESS (FORMERLY “EXPRESS MAIL”)

The Office strongly recommends that applicants file new applications by “Express Mail” (Priority Mail Express) in accordance with 37 CFR 1.10 (if such applications are not filed via EFS-Web) because such correspondence will be accorded the date of deposit in “Express Mail” with the USPS as the filing date. See 37 CFR 1.6(a) and MPEP § 513. Applications that are not filed by “Express Mail” can only be accorded the date of receipt in the Office as the filing date (unless there is a postal interruption or emergency designated by the Office and applicants are instructed to file their applications in a manner other than by “Express Mail”), thus any applicant who files an application by first class mail bears the risk of any delay in the delivery of the application to the Office, even if the delay is unusually significant due to some unforeseen event.

In general, applicants should consider filing new patent applications (as well as patent-related correspondence) via the Office electronic filing system (EFS-Web) whenever permitted. See the Legal Framework for EFS-Web posted on the USPTO Web site (http://www.uspto.gov/patents/process/file/efs/guidance /New_legal_framework.jsp) for information pertaining to the types of patent applications and documents that are permitted to be filed via EFS-Web. See also MPEP § 502.05. New applications cannot be transmitted by facsimile and are not entitled to the benefit of a Certificate of Transmission under 37 CFR 1.8. A request for a continued prosecution application (CPA) filed under 37 CFR 1.53(d) (available only for design applications) may be transmitted to the Office by facsimile (37 CFR 1.6(d)(3)); however, it is not entitled to the benefit of a Certificate of Transmission (see 37 CFR 1.8(a)(2)(i)(A)). See 37 CFR 1.6(d) and MPEP § 502.01. New patent applications may also be hand-delivered to the Office. See MPEP § 501.

Correspondence in a patent application can be filed via the USPS, hand-delivery, or, when permitted, via EFS-Web or facsimile. Applicants should file correspondence with a Certificate of Mailing or a Certificate of Transmission under 37 CFR 1.8 when permitted. See MPEP §§ 502.01 and 512. Even if the post office is closed due to an emergency, applicants should ordinarily be able to deposit correspondence in a mailbox for first class mail.

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Last Modified: 03/27/2014 10:10:35