Can you request reconsideration of patent term adjustment after the two-month deadline?
Can you request reconsideration of patent term adjustment after the two-month deadline?
Generally, requests for reconsideration of patent term adjustment filed after the two-month deadline are dismissed as untimely. However, MPEP 2734 provides an exception for situations where the applicant can show that the delay was unavoidable:
“The two-month time period may be extended under the provisions of 37 CFR 1.136(a) only if the extension is filed prior to issuance of the patent. Likewise, a request for reconsideration filed outside the two-month period will be dismissed as untimely, unless applicant can establish that the delay in filing the request was unavoidable.”
To request reconsideration after the deadline, you must file a petition under 37 CFR 1.183 to waive the time requirement of 37 CFR 1.705(b). This petition must include:
- A showing that the delay was unavoidable
- The $400 petition fee
- The $200 fee for requesting reconsideration of the patent term adjustment
- A statement of facts specifying how the correct patent term adjustment should be calculated
It’s important to note that the USPTO rarely grants such petitions, so it’s crucial to file within the original two-month period whenever possible.
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