What happens if a protest is filed after the time limit under 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 into the record or considered. However, there are exceptions. According to the MPEP 1901:

“A protest filed after final rejection or allowance will not be entered into the record or considered, except as provided under 37 CFR 1.291(c)(2). A protest filed after the date the application was published or the mailing of a notice of allowance under 37 CFR 1.311, whichever occurs first, will not be entered into the record or considered except as provided under 37 CFR 1.291(c)(3).”

The exceptions mentioned in 37 CFR 1.291(c)(2) and (c)(3) relate to protests accompanied by the written consent of the applicant. In such cases, the protest may be considered even if filed after the time limit, but only if filed before the patent is granted.