How can the benefit of a provisional application be restored if the 12-month deadline is missed?

If an applicant misses the 12-month deadline for claiming the benefit of a provisional application, they may be able to restore the benefit under certain conditions:

1. The nonprovisional application must be filed within 14 months of the provisional application’s filing date
2. A petition under 37 CFR 1.78(b) must be filed in the nonprovisional application
3. The delay in filing must be unintentional

The MPEP states: “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.”

The petition must include:

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