What happens if a protest is filed after the time limit specified in 37 CFR 1.291?
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.
If a protest is filed after the time limit specified in 37 CFR 1.291, it will generally not be entered or considered by the USPTO. However, there are two exceptions to this rule:
- Written Consent of the Applicant: If the protest is accompanied by the written consent of the applicant, it may be entered and considered after the time limit.
- Service of Process: If the protest is served upon the applicant in accordance with 37 CFR 1.248, it may be entered and considered.
The MPEP 1901 states:
“A protest filed after the date the application was published or a notice of allowance under 37 CFR 1.311 was mailed, whichever occurs first, will not be entered in the application file or considered, unless the protest is accompanied by the written consent of the applicant or is filed under 37 CFR 1.291(c)(5).”
It’s crucial to adhere to the time limits to ensure your protest is considered, or obtain the necessary consent or follow the service of process procedure if filing late.