|Issue: Fees, Notifications, Applicant Submissions
||Referenced Items (303, 304, 305, 306, 307, 308, 309, 310, 311, 312)
(309) Revision of the Notice of Allowance Form
The Notice of Allowance and Issue Fee Due form (PTOL-85) has
been revised, and the revised form is entitled "Notice of Allowance
and Fee(s) Due" (PTOL-85). Revision of the form was necessary to
include the amount of any required publication fee, as provided in 37
CFR 1.211(e) and 1.311, and to more clearly communicate the amount of
any patent term extension or adjustment earned under 35 U.S.C.
Beginning in November of 2001, the revised PTOL-85 form will be
mailed when an application is allowed. Although the new form for a
Notice of Allowance is already being mailed in any application with a
positive patent term adjustment (see 35 U.S.C. 154(b),
effective May 29, 2000) when the application is allowed, the new form
is currently being mailed only to communicate patent term adjustment
and does not include any publication fee that may be required. In the
interim a separate "Notice of Publication Fee Due" is being mailed.
See Interim Practice of Mailing a Notice of Publication Fee Due
Separate From the Notice of Allowance, 1248 Off. Gaz. Pat.
Office 166 (July 31, 2001).
As revised, the PTOL-85 form is three pages long, with all
three pages being mailed to applicant and a duplicate being retained in
the application file. Pages 1 and 2 of the revised form now include an
indication that the publication fee is due, if the application was
subject to publication and the publication fee has not already been
paid. The second page (Part B) of the revised form (the PTOL-85B)
should be returned to the Office with payment of the issue fee. The
PTOL-85B is labeled "TRANSMIT THIS FORM WITH FEE(S)" at the bottom.
Applicants are reminded to transmit an extra copy of the PTOL-85B when
payment of the issue fee is by way of authorization to debit a Deposit
Account, so that the Office does not need to make a photocopy.
See Manual of Patent Examining Procedure, Section 509.01.
There are three versions of page three of the revised PTOL-85
form, depending upon the filing date of the application.
(1) For applications filed before June 8, 1995, page three will
state that "This application was filed prior to June 8, 1995, thus no
Patent Term Extension or Adjustment is applicable under 35 U.S.C.
154(b)." Utility and Plant applications filed before June 8, 1995 are
eligible for a 17 year term and thus are not eligible for patent term
extension or adjustment under 35 U.S.C. 154(b).
(2) For applications filed on or after June 8, 1995 and before
May 29, 2000, page three will state that "The patent term extension
is __ days. Any patent to issue from the above identified application
will include an indication of the __ day extension on the front page.
If a continued prosecution application (CPA) was filed in the
above-identified application, the filing date that determines patent
term extension is the filing date of the most recent CPA." Utility
and plant applications filed on or after June 8, 1995 and before May
29, 2000 may be eligible for patent term extension. See 35
U.S.C. 154(b), effective June 8, 1995, and 37 CFR 1.701.
(3) For applications filed on or after May 29, 2000, page three
will state that: "The patent term adjustment to date is __ days. If
the issue fee is paid on a date that is three months after the mailing
date of this notice, and the patent issues on the Tuesday before the
date that is 28 weeks (six and a half months) after the mailing date of
this notice, the term adjustment will be __ days. If a continued
prosecution application (CPA) was filed in the above-identified
application, the filing date that determines patent term extension is
the filing date of the most recent CPA." Utility and plant
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applications filed on or after May 29, 2000 may be eligible for patent
term adjustment. See 35 U.S.C. 154(b), effective May 29,
2000, and 37 CFR 1.702-1.705, especially 37 CFR 1.705(a).
Sample copies of three different versions of the Notice of
Allowance and Fee(s) Due form (PTOL-85) are posted at:
For more information see the many questions and answers about
eighteen month publication, publication fees, and patent term
adjustment posted on the USPTO's Internet Web site at
Specific questions concerning publication of patent
applications, or publication or issue fees, including any questions
about the PTOL-85, should be directed to the Customer Service Center,
Office of Patent Publication, by telephone at (703) 308-6789 or
1-888-786-0101, or by facsimile at (703) 305-5065. Questions regarding
patent term extension or adjustment should be directed to Kery Fries or
Mark Polutta, Legal Advisors with the Office of Patent Legal
Administration. Kery Fries can be reached by e-mail at Kery.Fries@uspto.gov
and by telephone at (703)308-0687. Mark Polutta can be reached at
Mark.Polutta@uspto.gov and by telephone at (703)308-8122.
October 15, 2001 STEPHEN G. KUNIN
Deputy Commissioner for Patent
[1252 OG 103]