How do extensions of time work with final rejections?
For final rejections, the USPTO has a specific procedure for extensions of time. The MPEP states:
If an applicant initially replies within 2 months from the date of mailing of any final rejection setting a 3-month shortened statutory period for reply and the Office does not mail an advisory action until after the end of the 3-month shortened statutory period, the period for reply for purposes of determining the amount of any extension fee will be the date on which the Office mails the advisory action advising applicant of the status of the application, but in no event can the period extend beyond 6 months from the date of the final rejection.
This means that if you reply within 2 months of a final rejection and don’t receive an advisory action within 3 months, your extension time (and fees) will be calculated from when the advisory action is mailed. However, the total time can never exceed 6 months from the final rejection date.
The examiner must include specific language in each final rejection to explain this procedure. It’s important to note that This procedure applies only to a first reply to a final rejection.
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