Can the benefit of a provisional application be restored after the 12-month deadline?

Yes, the benefit of a provisional application can be restored even after the 12-month deadline has passed, under certain conditions. The MPEP explains:

“If a nonprovisional application or an international application designating the United States has a filing date which is after the expiration of the twelve-month period but within two months from the expiration of the period, the benefit of the provisional application may be restored under PCT Rule 26bis.3 for an international application, or upon petition under 37 CFR 1.78(b), if the delay in filing the nonprovisional application or the international application was unintentional.”

To restore the benefit, a petition under 37 CFR 1.78(b) must be filed, which requires:

• A reference to the provisional application
• The petition fee
• A statement that the delay was unintentional

The petition must be filed in the subsequent application or, in certain cases, in the earliest nonprovisional application claiming benefit to the international application.

To learn more:

• provisional application
• benefit restoration
• patent petition
• unintentional delay

To learn more:

• provisional applications
• benefit claims
• restoration of benefit
• patent law