710.01(a) Statutory Period, How Computed [R-08.2012]
The actual time taken for reply is computed from the date stamped or printed on the Office action to the date of receipt by the Office of applicant’s reply. No cognizance is taken of fractions of a day and applicant’s reply is due on the corresponding day of the month 6 months or any lesser number of months specified after the Office action.
For example, reply to an Office action with a 3-month shortened statutory period dated November 30 is due on the following February 28 (or 29 if it is a leap year), while a reply to an Office action dated February 28 is due on May 28 and not on the last day of May. Ex parte Messick, 7 USPQ 57 (Comm’r Pat. 1930).
A 1-month extension of time extends the time for reply to the date corresponding to the Office action date in the following month. For example, a reply to an Office action mailed on January 31 with a 3-month shortened statutory period would be due on April 30. If a 1-month extension of time were given, the reply would be due by May 31. The fact that April 30 may have been a Saturday, Sunday, or federal holiday has no effect on the extension of time. Where the period for reply is extended by some time period other than “1-month” or an even multiple thereof, the person granting the extension should indicate the date upon which the extended period for reply will expire.
When a timely reply is ultimately not filed, the application is regarded as abandoned after midnight of the date the period for reply expired. In the above example where May 31 is not a Saturday, Sunday, or federal holiday and no further extensions of time are obtained prior to the end of the 6-month statutory period, the application would be abandoned as of June 1. The fact that June 1 may be a Saturday, Sunday, or federal holiday does not change the abandonment date since the reply was due on May 31, a business day. See MPEP § 711.04(a) regarding the pulling and forwarding of abandoned applications.
A 30-day period for reply in the Office means 30 calendar days including Saturdays, Sundays, and federal holidays. However, if the period ends on a Saturday, Sunday, or federal holiday, the reply is timely if it is filed on the next succeeding business day. If the period for reply is extended, the time extended is added to the last calendar day of the original period, as opposed to being added to the day it would have been due when said last day is a Saturday, Sunday, or federal holiday.
The date of receipt of a reply to an Office action is given by the “Office date” stamp which appears on the reply paper.
In some cases the examiner’s Office action does not determine the beginning of a statutory reply period. In all cases where the statutory reply period runs from the date of a previous action, a statement to that effect should be included.
Since extensions of time are available pursuant to 37 CFR 1.136(a), it is incumbent upon applicants to recognize the date for reply so that the proper fee for any extension will be submitted. Thus, the date upon which any reply is due will normally be indicated only in those instances where the provisions of 37 CFR 1.136(a) are not available. See MPEP Chapter 2200 for reexamination proceedings.