# MPEP § 211.04: Delayed Benefit Claims

> Federal · Agency guidance · In force

URL: https://www.frixlaw.com/law-library/statutes/MPEP_S211.04

## Section

- **Citation:** MPEP § 211.04
- **Heading:** Delayed Benefit Claims
- **Jurisdiction:** Federal
- **Kind:** Agency guidance
- **Status:** In force
- **Text as of:** August 14, 2026
- **Source:** Compiled text
- **Location:** USPTO MPEP / Chapter 0200 - Types and Status of Application › Benefit and Priority Claims / MPEP § 211.04

## Text

If the reference required by
35 U.S.C. 120
and
37 CFR
1.78
is not submitted within the required time period, a petition
for an unintentionally delayed claim may be filed. The petition must be accompanied by:
(A) the reference required by
35 U.S.C. 120
and
37 CFR 1.78
to
the prior application (unless previously submitted); (B) a petition fee under
37 CFR
1.17(m)
; and (C) a statement that the entire delay between the
date the benefit claim was due under
37 CFR 1.78
and the date the claim
was filed was unintentional.
While the Director may require additional information
whenever there is a question of whether the delay was unintentional, a person filing a
petition to accept a delayed benefit claim more than two years after the date the
benefit claim was due is required to provide additional explanation of the circumstances
surrounding the delay that establishes that the entire delay was unintentional. This
requirement is in addition to the requirement to provide a statement that the entire
delay was unintentional in
37 CFR 1.78(c)(3)
and
(e)(3)
. See
Clarification of the Practice for Requiring
Additional Information in Petitions Filed in Patent Applications and Patents Based on
Unintentional Delay,
85 FR 12222-24 (March 2, 2020). See also
MPEP §
711.03(c)
for further discussion of the “unintentional” delay
standard.
Effective May 13, 2015,
37 CFR
1.78(d)(3)
was amended to make the procedures under
37 CFR
1.78(e)
to accept an unintentionally delayed benefit claim
applicable to design applications where the benefit claim was not submitted during the
pendency of the design application. Thus, a petition under
37 CFR
1.78(e)
may be filed along with a request for certificate of
correction after patent grant. See
MPEP § 1481.03
.
Likewise, if the reference required by
35 U.S.C. 119(e)
and
37 CFR
1.78
is not submitted within the required time period, a petition
for an unintentionally delayed claim may be filed. The petition must be accompanied by:
(A) the reference required by
35 U.S.C
us, a petition under
37 CFR
1.78(e)
may be filed along with a request for certificate of
correction after patent grant. See
MPEP § 1481.03
.
Likewise, if the reference required by
35 U.S.C. 119(e)
and
37 CFR
1.78
is not submitted within the required time period, a petition
for an unintentionally delayed claim may be filed. The petition must be accompanied by:
(A) the reference required by
35 U.S.C. 119(e)
and
37 CFR
1.78
to the prior provisional application (unless previously
submitted); (B) a petition fee under
37 CFR 1.17(m)
; and (C) a statement
that the entire delay between the date the benefit claim was due under
37 CFR 1.78
and the date the claim was filed was unintentional. The Director may require additional
information where there is a question whether the delay was unintentional. In
particular, when the petition to accept a delayed benefit claim is submitted more than
two years after the date the benefit claim was due, the petition will require additional
explanation of the circumstances surrounding the delay that establishes that the entire
delay was unintentional. See
37 CFR 1.78(c)
.
Effective December 18, 2013,
35 U.S.C.
119(e)(1)
no longer requires that the amendment containing the
specific reference to the earlier filed provisional application be submitted during the
pendency of the application. Therefore, a petition to revive is no longer required to
add or correct a benefit claim under
35 U.S.C. 119(e)
in an abandoned
nonprovisional application filed on or after November 29, 2000. Applicant may simply
file a petition under
37 CFR 1.78
to accept an
unintentionally delayed claim for the benefit of a prior-filed provisional application
in the abandoned nonprovisional application. It may be necessary to correct the benefit
in the abandoned nonprovisional application so that the benefit claims in a later filed
nonprovisional application claiming benefit of the abandoned nonprovisional application
are proper
etition under
37 CFR 1.78
to accept an
unintentionally delayed claim for the benefit of a prior-filed provisional application
in the abandoned nonprovisional application. It may be necessary to correct the benefit
in the abandoned nonprovisional application so that the benefit claims in a later filed
nonprovisional application claiming benefit of the abandoned nonprovisional application
are proper.
Petitions
for an unintentionally delayed benefit claim should be forwarded to the Office of
Petitions. See
MPEP §
1002.02(b)
.
DELAYED SUBMISSION OF BENEFIT CLAIM IN INTERNATIONAL APPLICATION
A petition under
37 CFR 1.78
for accepting an
unintentionally delayed benefit claim and the petition fee under
37 CFR
1.17(m)
are required to add a benefit claim under
35 U.S.C.
120
and
365(c)
in an abandoned international
application designating the United States, even when the international application did
not enter the national stage under
35 U.S.C. 371
. For example, when
filing a “bypass” continuation application under
35 U.S.C.
111(a)
that claims the benefit of an international application
designating the United States that could have but did not claim the benefit of an
earlier U.S. application, and the benefit claim is to be added to the international
application, a petition under
37 CFR 1.78
must be filed in the
international application.
If a petition under
37 CFR 1.78(c)
or
(e)
is required in an international application that was not
filed with the United States Receiving Office and is not a nonprovisional application,
then the petition may be filed in the earliest nonprovisional application that claims
benefit under
35
U.S.C. 120
,
121
,
365(c)
, or
386(c)
to the international application and will be treated as
having been filed in the international application. See
37 CFR
1.78(i)
.

## Nearby sections

- [MPEP § 201 Types of Applications](https://www.frixlaw.com/law-library/statutes/MPEP_S201.md)
- [MPEP § 201.01 National Applications](https://www.frixlaw.com/law-library/statutes/MPEP_S201.01.md)
- [MPEP § 201.02 General Terms Used to Describe Applications](https://www.frixlaw.com/law-library/statutes/MPEP_S201.02.md)
- [MPEP § 201.03 [Reserved] [R-]](https://www.frixlaw.com/law-library/statutes/MPEP_S201.03.md)
- [MPEP § 201.04 Provisional Application](https://www.frixlaw.com/law-library/statutes/MPEP_S201.04.md)
- [MPEP § 201.05 Reissue Application](https://www.frixlaw.com/law-library/statutes/MPEP_S201.05.md)
- [MPEP § 201.06 Divisional Application](https://www.frixlaw.com/law-library/statutes/MPEP_S201.06.md)
- [MPEP § 201.06(a) Former 37 CFR 1.60 Divisional Continuation Procedure](https://www.frixlaw.com/law-library/statutes/MPEP_S201.06(a).md)
- [MPEP § 201.06(b) Former 37 CFR 1.62 File Wrapper Continuing Procedure](https://www.frixlaw.com/law-library/statutes/MPEP_S201.06(b).md)
- [MPEP § 201.06(c) 37 CFR 1.53(b) and 37 CFR 1.63(d) Divisional-Continuation Procedure](https://www.frixlaw.com/law-library/statutes/MPEP_S201.06(c).md)
- [MPEP § 201.06(d) 37 CFR 1.53(d) Continued Prosecution Application (CPA) Practice](https://www.frixlaw.com/law-library/statutes/MPEP_S201.06(d).md)
- [MPEP § 201.07 Continuation Application](https://www.frixlaw.com/law-library/statutes/MPEP_S201.07.md)
- [MPEP § 201.08 Continuation-in-Part Application](https://www.frixlaw.com/law-library/statutes/MPEP_S201.08.md)
- [MPEP § 202 Cross-Noting](https://www.frixlaw.com/law-library/statutes/MPEP_S202.md)

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Source: Frix Law Library, https://www.frixlaw.com/law-library/statutes/MPEP_S211.04. Check the current official text before relying on it. Not legal advice.