What are the consequences of failing to timely submit a reference to a prior-filed application for a benefit claim under 35 U.S.C. 120 or 119(e)?

Failure to timely submit the reference to the prior-filed application within the time periods specified in 37 CFR 1.78 is considered a waiver of any benefit claim under 35 U.S.C. 120, 121, 365(c), or 386(c) to the prior-filed application. See 37 CFR 1.78(d)(3)(iii). The time periods are not extendable.

If the reference to the prior-filed application is submitted after the time period provided by 37 CFR 1.78, a petition and the petition fee under 37 CFR 1.17(m) would be required to accept the delayed claim. The petition must be accompanied by:

• The reference required by 35 U.S.C. 120 and 37 CFR 1.78 to the prior-filed application
• The petition fee
• A statement that the entire delay between the date the benefit claim was due and the date the claim was filed was unintentional