The issue fee and any required publication fee are due 3 months from the date of the Notice of Allowance. The period for payment of the issue fee and any required publication fee is not extendable, see 37 CFR 1.311(a). The amount of the issue fee and any required publication fee are shown on the Notice of Allowance. The Notice of Allowance will also reflect any issue fee previously paid in the application. The issue fee due does not reflect a credit for any previously paid issue fee in the application. If an issue fee has previously been paid in the application as reflected in the Notice of Allowance, the return of Part B (Fee(s) Transmittal form) will be considered a request to reapply the previously paid issue fee toward the issue fee that is now due. For example, if the application was allowed and the issue fee paid, but applicant withdrew the application from issue and filed a Request for Continued Examination (RCE) and the application was later allowed, the Notice of Allowance will reflect an issue fee amount that is due and the issue fee that was previously paid.
Under the changes to 35 U.S.C. 151 in the Patent Law Treaties Implementation Act (PLTIA) (Public Law 112-211), the sum specified in the notice of allowance will constitute the issue fee and any required publication fee, and the Office will proceed to issue a patent when the applicant pays the sum specified in the notice of allowance, regardless of the issue fee and/or publication fee in effect on the date the sum specified in the notice of allowance is paid. The amounts due under 35 U.S.C. 41(a) (i.e., the issue fee, but not the publication fee) are reduced by 50 per centum for small entities and 75 per centum for micro entities.
Applicants and their attorneys or agents are urged to use the Fee(s) Transmittal form (PTOL-85B) provided with the Notice of Allowance when submitting their payments, even when no additional fee is due. Unless otherwise directed, all post allowance correspondence should be addressed “Mail Stop Issue Fee.”
Where it is clear that an applicant actually intends to pay the issue fee and required publication fee, but the proper fee payment is not made, for example, an incorrect issue fee amount is supplied, or a PTOL-85B Fee(s) Transmittal form is filed without payment of the issue fee, a general authorization to pay fees or a specific authorization to pay the issue fee, submitted prior to the mailing of a notice of allowance, will be allowed to act as payment of the correct issue fee. 37 CFR 1.311(b). In addition, where the deposit account information is added to the Fee(s) Transmittal form (PTOL-85B), but the check box authorizing that the deposit account be charged the issue fee is not checked, the deposit account will still be charged the required issue fee and any required publication fee.
Technology Center personnel should forward all post allowance correspondence to the Office of Patent Application Processing (OPAP). The papers received by the OPAP will be scanned and matched with the appropriate application and the entire application will be forwarded to the appropriate Technology Center for processing.
The payment of the issue fee due may be simplified by using a U.S. Patent and Trademark Office Deposit Account or a credit card payment with form PTO-2038 for such a fee. See MPEP § 509. However, any such payment must be specifically authorized by reference to the “issue fee” or “fees due under 37 CFR 1.18.”
The fee(s) due will be accepted from the applicant, assignee, or a registered attorney or agent, either of record or under 37 CFR 1.34.
The Director has no authority to extend the time for paying the issue fee. Intentional failure to pay the issue fee within the 3 months permitted by 35 U.S.C. 151 does not amount to unintentional delay in making payment.