How can the benefit of a provisional application be restored if filed after 12 months?

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.

The benefit of a provisional application can be restored if the nonprovisional application is filed within 14 months of the provisional application filing date. To restore the benefit:

1. File a petition under 37 CFR 1.78(b) in the nonprovisional application
2. Include the reference to the provisional application in an application data sheet
3. Pay the petition fee set in 37 CFR 1.17(m)
4. Provide a statement that the delay in filing was unintentional

As stated in MPEP 211.01(a): “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.”