What is the deadline for submitting a benefit claim in a patent application?

This page is an FAQ based on guidance from the Manual of Patent Examining Procedure. It is provided as guidance, with links to the ground truth sources. This is information only: it is not legal advice.

The deadline for submitting a benefit claim depends on the type of application:

• For utility or plant applications filed under 35 U.S.C. 111(a): The later of 4 months from the actual filing date or 16 months from the filing date of the prior application.
• For national stage applications under 35 U.S.C. 371: The later of 4 months from the date on which the national stage commenced, 4 months from the initial submission under 35 U.S.C. 371 to enter the national stage, or 16 months from the filing date of the prior application.

As stated in MPEP 211.02: “This time period is not extendable and a failure to submit the reference required by 35 U.S.C. 119(e) and/or 120, where applicable, within this time period is considered a waiver of any benefit of such prior application(s) under 35 U.S.C. 119(e), 120, 121, 365(c), and 386(c).”

If the deadline is missed, a petition under 37 CFR 1.78 and payment of a petition fee may be required to accept a late benefit claim.