What is the ‘safety net’ provision in 37 CFR 1.136(a)(3)?

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.

The ‘safety net’ provision in 37 CFR 1.136(a)(3) is designed to protect applicants who inadvertently omit a petition for extension of time. The MPEP explains that this provision allows for three scenarios to be treated as a constructive petition for an extension of time:

1. A previously filed written request to treat a reply requiring an extension of time as incorporating a petition for such extension of time;
2. A previously filed authorization to charge all required fees, fees under 37 CFR 1.17, or all required extension of time fees;
3. Submission of the fee set forth in 37 CFR 1.17(a) with the reply.

The MPEP states: Accordingly, 37 CFR 1.136(a)(3) is a ‘safety net’ to avoid a potential loss of patent rights for applicants who inadvertently omitted a petition in these scenarios.