Can a protest be filed after a patent application has been published?

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.

Yes, but with restrictions. According to MPEP 1901.06:

“35 U.S.C. 122(c) permits the filing of a protest in an application after the application has been published if there is express written consent of the applicant.“

To file a protest after publication, the following conditions must be met:

• The protest must be accompanied by the written consent of the applicant.
• It must be filed prior to the date the notice of allowance is given or mailed.
• The protest must comply with the requirements of 37 CFR 1.291(b) and (c).

The applicant’s written consent can be specific to a particular protest or can be a blanket consent for certain types of protests.