What are the requirements for adding a benefit claim to a prior-filed provisional application?

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.

Adding a benefit claim to a prior-filed provisional application requires meeting specific criteria. According to MPEP 211.02(a):

“To add a benefit claim to a prior-filed provisional application, applicant must file a petition to accept a delayed claim under 37 CFR 1.78(c). The petition must be accompanied by:”

• The reference required by 35 U.S.C. 119(e) and 37 CFR 1.78(a)(3) to the prior-filed provisional application, unless previously submitted;
• The petition fee set forth in 37 CFR 1.17(m); and
• A statement that the entire delay between the date the benefit claim was due under 37 CFR 1.78(a)(4) and the date the benefit claim was filed was unintentional.

Additionally, the nonprovisional application claiming the benefit must have been filed within 12 months of the provisional application’s filing date (or 14 months if an appropriate statement is made). If this time requirement is not met, a petition under 37 CFR 1.78(b) to restore the benefit of the provisional application must be filed.

For more details on the restoration of the right of priority, refer to MPEP 213.03.