How does the automatic two-month extension work for responses to final rejections in reexamination?

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.

In ex parte reexamination proceedings, an automatic two-month extension is granted for the first response to a final rejection. Key points include:

• The filing of a timely first response to a final rejection is construed as including a request to extend the shortened statutory period for an additional two months.
• This applies even if the response is informal or unsigned.
• The total period for response cannot exceed six months from the date of the final action.
• This automatic extension does not apply once a notice of appeal has been filed.
• The purpose is to give the patent owner time to consider the examiner’s ruling before being required to file a notice of appeal.

The MPEP states: “The filing of any timely first response to a final rejection will be construed as including a request to extend the shortened statutory period for an additional two months, even if the response is informal and/or not signed. An object of this practice is to obviate the necessity for appeal merely to gain time to consider the examiner’s position in reply to a response timely filed after final rejection.“

This practice aligns with the minimum reply period provisions of the Patent Law Treaty (PLT).