506.02 Review of Refusal To Accord Filing Date [R-07.2015]
The filing date of the provisional or nonprovisional application is the date of receipt in the Office of the application which includes a specification containing description pursuant to 37 CFR 1.71 and at least one claim (required for nonprovisional design applications only) pursuant to 37 CFR 1.75, and any drawings required by 37 CFR 1.81(a). See 37 CFR 1.53(b) and (c).
If any of these items are missing, applicant will be notified to file them and the filing date will be the date of receipt of the missing part(s). If the oath or declaration for a nonprovisional application was executed and filed with the application, a supplemental oath or declaration by the inventor is required in some circumstances if the nonprovisional application was filed before September 16, 2012, e.g., where the missing item is the claim, specification, or a drawing. The supplemental declaration must identify the missing item and indicate, as appropriate, that it accurately claims, describes, or illustrates applicant’s invention. See MPEP § 601.01(d)-(g) where the application is filed without all the pages of the specification, without at least one claim (nonprovisional design application), without drawings, or without all the figures of the drawings. For applications filed on or after September 16, 2012, the Office will not require a person who has executed an oath or declaration in compliance with 35 U.S.C. 115 and 37 CFR 1.63 or 1.162 for an application to provide an additional inventor’s oath or declaration for the application (37 CFR 1.67(c)). An error in or failure to identify inventorship does not raise a filing date issue.
Any review of the refusal to grant a filing date as of the date of deposit of the application would be by way of petition, accompanied by the petition fee (37 CFR 1.17(f)). Petitioner should provide any arguments that he or she has that the items noted were not missing or that a filing date should be assigned in the absence of such items if they are believed to be unnecessary. If petitioner alleges that no defect exists, a request for refund of the petition fee may be included in the petition.
For applications properly filed under 37 CFR 1.10, the filing date is the date that the application was deposited as Priority Mail Express® in the U.S. Postal Service. For example, if a new patent application is deposited in Priority Mail Express® in accordance with 37 CFR 1.10 on a Saturday and the United States Postal Service gives it a date of deposit of Saturday, the Office will accord and stamp the correspondence with the Saturday date. 37 CFR 1.6(a)(2). If the proper procedures were not followed, the application will receive a filing date as of the date it was received in the Office. Any review of these matters would be by way of petition, accompanied by the petition fee (37 CFR 1.17(f)), providing whatever arguments and evidence petitioner has that the application is entitled to a filing date as of the date it was deposited as Priority Mail Express®. See MPEP § 513.
Any petition under this section should be marked to the attention of the Office of Petitions.