Can a petition be accepted after the two-month filing period?
While the general rule is that petitions should be filed within two months, the USPTO does have discretion to accept late-filed petitions. According to the MPEP:
“37 CFR 1.181(f) authorizes deciding officials to reasonably exercise discretion to accept a petition filed more than 2 months after the date of the action or notice from which relief is requested.”
However, this discretion is not exercised lightly. The MPEP provides factors that may be considered when deciding whether to accept a late petition, including:
- The reason for the delay
- The impact on patent examination efficiency
- Whether accepting the petition would avoid unnecessary delays in prosecution
If a late petition is accepted, the decision should explain the reasoning to ensure clarity of the record.
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