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506.02 Review of Refusal To Accord Filing Date - 500 Receipt and Handling of Mail and Papers
506.02 Review of Refusal To Accord Filing Date
The filing date of the provisional or nonprovisional application is the date of receipt in the Office of the application which includes a specification containing description pursuant to 37 CFR 1.71 and at least one claim (required for nonprovisional applications only) pursuant to 37 CFR 1.75, and any drawings required by 37 CFR 1.81(a). See 37 CFR 1.53(b) and (c).
If any of these items are missing, applicant will be notified to file them and the filing date will be the date of receipt of the missing part(s). If the oath or declaration for a nonprovisional application was executed and filed with the application, a supplemental oath or declaration by the inventor is required in some circumstances, e.g., where the missing item is the claim, specification, or a drawing. The supplemental declaration must identify the missing item and indicate, as appropriate, that it accurately claims, describes, or illustrates applicant's invention. See MPEP § 601.01(d)-(g) where the application is filed without all the pages of the specification, without at least one claim (nonprovisional application), without drawings, or without all the figures of the drawings. An error in or failure to identify inventorship does not raise a filing date issue.
Any review of the refusal to grant a filing date as of the date of deposit of the application would be by way of petition, accompanied by the petition fee ( 37 CFR 1.17(h)). Petitioner should provide any arguments that he or she has that the items noted were not missing or that a filing date should be assigned in the absence of such items if they are believed to be unnecessary. If petitioner alleges that no defect exists, a request for refund of the petition fee may be included in the petition.
For applications properly filed under 37 CFR 1.10, the filing date is the date that the application was deposited as "Express Mail" in the U.S. Postal Service. For example, if a new patent application is deposited in "Express Mail" in accordance with 37 CFR 1.10 on a Saturday and the United States Postal Service gives it a date of deposit of Saturday, the Office will accord and stamp the correspondence with the Saturday date. 37 CFR 1.6(a)(2). If the proper procedures were not followed, the application will receive a filing date as of the date it was received in the Office. Any review of these matters would be by way of petition, accompanied by the petition fee ( 37 CFR 1.17(h)), providing whatever arguments and evidence petitioner has that the application is entitled to a filing date as of the date it was deposited as "Express Mail."
Petitions relating to the filing date accorded to patent applications under 37 CFR 1.53 are decided in the Office of the Deputy Commissioner for Patent Examination Policy (See MPEP § 1002.02(b)), with the exception of petitions relating to the filing date accorded to a design application, which are decided by the Director of Technology Center 2900. See MPEP § 1002.02(c)(3).
Any petition under this section should be marked to the attention of the Office of Patent Legal Administration.
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