Can I file a delayed benefit claim in an abandoned application?
Yes, it is possible to file a delayed benefit claim in an abandoned application, particularly for provisional applications. The MPEP 211.04 states:
“Effective December 18, 2013, 35 U.S.C. 119(e)(1) no longer requires that the amendment containing the specific reference to the earlier filed provisional application be submitted during the pendency of the application. Therefore, a petition to revive is no longer required to add or correct a benefit claim under 35 U.S.C. 119(e) in an abandoned nonprovisional application filed on or after November 29, 2000.”
This means you can file a petition under 37 CFR 1.78 to accept an unintentionally delayed claim for the benefit of a prior-filed provisional application in the abandoned nonprovisional application. This may be necessary to correct benefit claims in later-filed applications that claim benefit from the abandoned application.
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