Examples of when a payment of maintenance fees and any necessary surcharges will be considered to be late or insufficient include instances when:
- (A) Though a payment was received, additional funds are required due to surcharge or fee increase;
- (B) Though a payment was received in an amount for small entity, the patented file records do not indicate that an assertion of small entity status was received; or
- (C) The payment was received after the patent expired.
If the Office considers a payment to be late or insufficient, a notice (e.g., a Notice of Non-Acceptance of Patent Maintenance Fee (PTO-2142)) will be sent to the “fee submitter.” Reply to the notice is required prior to expiration of the grace period provided by 37 CFR 1.362(e) in order to avoid the expiration of the patent. If a reply is not received prior to expiration of the patent, then an appropriate petition under 37 CFR 1.377 or 37 CFR 1.378 is required. See MPEP § 2580 and § 2590.
If a payment is deemed insufficient because the payment was submitted in a discounted amount but entitlement to the entity status (small or micro) corresponding to the discounted amount was not established, an Underpayment Notice or Non-Acceptance Notice will be mailed to the fee submitter. See MPEP § 2550 for information on establishing or changing an entity status for the purpose of paying a maintenance fee.