# MPEP § 213.03: Time for Filing U.S. Nonprovisional Application

> Federal · Agency guidance · In force

URL: https://www.frixlaw.com/law-library/statutes/MPEP_S213.03

## Section

- **Citation:** MPEP § 213.03
- **Heading:** Time for Filing U.S. Nonprovisional Application
- **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 § 213.03

## Text

The United States nonprovisional application must be filed
not later than twelve months (six months in the case of a design application) after the
date on which the foreign application was filed, unless the right of priority has been
restored, or the nonprovisional application must be entitled to claim the benefit under
35 U.S.C.
120
,
121
,
365(c)
, or
386(c)
of an application that was filed not later than twelve
months (six months in the case of a design application) after the date on which the
foreign application was filed, unless the right of priority has been restored. See
37 CFR
1.55(c)
and subsection III, below. This twelve-month period is
subject to
35 U.S.C.
21(b)
(and
37 CFR 1.7(a)
) and
PCT Rule 80.5
, and
the six month period is subject to
35 U.S.C. 21(b)
,
37 CFR
1.7(a)
, and Hague Agreement Rule 4(4).
35 U.S.C.
21(b)
and
37 CFR 1.7(a)
provide that when the
day, or the last day, for taking an action (e.g., filing a nonprovisional application
within twelve months of the date on which the foreign application was filed) or paying a
fee in the Office falls on Saturday, Sunday, or a federal holiday within the District of
Columbia, the action may be taken, or fee paid, on the next succeeding secular or
business day.
PCT Rule
80.5
has similar provisions relating to the expiration of any
period during which any document or fee in an international application must reach a
national Office or intergovernmental organization. Hague Agreement Rule 4(4) provides
that if the period expires on a day on which the International Bureau or the office
concerned is not open to the public, the period shall expire on the first subsequent day
on which the International Bureau or the office concerned is open to the public.
In computing this twelve months (or six months in the case
of a design application), the first day is not counted; thus, if an application was
filed in Canada on January 3, 1983, the U.S. nonprovisional application may be filed on
January 3, 1984
open to the public, the period shall expire on the first subsequent day
on which the International Bureau or the office concerned is open to the public.
In computing this twelve months (or six months in the case
of a design application), the first day is not counted; thus, if an application was
filed in Canada on January 3, 1983, the U.S. nonprovisional application may be filed on
January 3, 1984. The Paris Convention specifies in
Article 4C(2)
that “the day of filing
is not counted in this period.” (This is the usual method of computing periods, for
example a 6-month period for reply to an Office action dated January 2 does not expire
on July 1, but the reply may be made on July 2.) If the last day of the twelve months is
a Saturday, Sunday, or federal holiday within the District of Columbia, the U.S.
non-provisional application is in time if filed on the next succeeding business day;
thus, if the foreign application was filed on September 4, 1981, the U.S. nonprovisional
application is in time if filed on September 7, 1982, since September 4, 1982, was a
Saturday and September 5, 1982 was a Sunday and September 6, 1982 was a federal holiday.
In view of
35 U.S.C.
21
, and the Paris Convention which provides “if the last day of
the period is an official holiday, or a day on which the Office is not open for the
filing of applications in the country where protection is claimed, the period shall be
extended until the first following working day” (
Article 4C(3)
), if the twelve months
expires on Saturday, the U.S. application may be filed on the following Monday. Note
Ex parte Olah,
131 USPQ 41 (Bd. App. 1960). See, e.g.,
Dubost v. U.S. Patent and Trademark Office,
777 F.2d 1561, 1562,
227 USPQ 977, 977 (Fed. Cir. 1985).
I.
FILING OF PAPERS DURING UNSCHEDULED CLOSINGS OF THE U.S. PATENT AND TRADEMARK
OFFICE
37 CFR
1.9(h)
provides that the definition of “Federal holiday within
the District of Columbia” includes an official closing of the Office. When the entire
U.S
parte Olah,
131 USPQ 41 (Bd. App. 1960). See, e.g.,
Dubost v. U.S. Patent and Trademark Office,
777 F.2d 1561, 1562,
227 USPQ 977, 977 (Fed. Cir. 1985).
I.
FILING OF PAPERS DURING UNSCHEDULED CLOSINGS OF THE U.S. PATENT AND TRADEMARK
OFFICE
37 CFR
1.9(h)
provides that the definition of “Federal holiday within
the District of Columbia” includes an official closing of the Office. When the entire
U.S. Patent and Trademark Office is officially closed for business for an entire day,
for reasons due to adverse weather or other causes, the Office will consider each
such day a “Federal holiday within the District of Columbia” under
35 U.S.C. 21
.
Any action or fee due on such a day may be taken, or fee paid, on the next succeeding
business day the Office is open. In addition,
37 CFR 1.6(a)(1)
provides “[t]he
U.S. Patent and Trademark Office is not open for the filing of correspondence on any
day that is a Saturday, Sunday or Federal holiday within the District of Columbia” to
clarify that any day that is a Saturday, Sunday or federal holiday within the
District of Columbia is a day that the U.S. Patent and Trademark Office is not open
for the filing of applications within the meaning of
Article 4C(3)
of the Paris
Convention. Note further that in accordance with
37 CFR 1.6(a)(2)
, even when the
Office is not open for the filing of correspondence on any day that is a Saturday,
Sunday or federal holiday within the District of Columbia, correspondence deposited
as Priority Mail Express
®
with the USPS in accordance with
37 CFR
1.10
or filed via the USPTO patent electronic filing system
will be considered filed on the date of its deposit, regardless of whether that date
is a Saturday, Sunday or federal holiday within the District of Columbia (under
35 U.S.C.
21(b)
or
37 CFR 1.7
).
When the U.S. Patent and Trademark Office is open for
business during any part of a business day between 8:30 a.m
PS in accordance with
37 CFR
1.10
or filed via the USPTO patent electronic filing system
will be considered filed on the date of its deposit, regardless of whether that date
is a Saturday, Sunday or federal holiday within the District of Columbia (under
35 U.S.C.
21(b)
or
37 CFR 1.7
).
When the U.S. Patent and Trademark Office is open for
business during any part of a business day between 8:30 a.m. and 5:00 p.m., papers
are due on that day even though the Office may be officially closed for some period
of time during the business day because of an unscheduled event. The procedures of
37 CFR
1.10
may be used for filing applications. Information regarding
whether or not the Office is officially closed on any particular day may be obtained
by calling 1-800-PTO-9199 or (571) 272-1000.
II.
FIRST FOREIGN APPLICATION
The twelve months is from earliest foreign filing
except as provided in
35 U.S.C. 119(c)
. If an inventor
has filed an application in France on October 4, 1981, and an identical application
in the United Kingdom on March 3, 1982, and then files in the United States on
February 2, 1983, the inventor is not entitled to the right of priority at all; the
inventor would not be entitled to the benefit of the date of the French application
since this application was filed more than twelve months before the U.S. application,
and the inventor would not be entitled to the benefit of the date of the United
Kingdom application since this application is not the first one filed.
Ahrens v. Gray,
1931 C.D. 9, 402 O.G. 261 (Bd. App. 1929). If
the first foreign application was filed in a country which is not recognized with
respect to the right of priority, it is disregarded for this purpose.
35 U.S.C.
119(c)
extends the right of priority to “subsequent” foreign
applications if one earlier filed had been withdrawn, abandoned, or otherwise
disposed of, under certain conditions.
The United Kingdom and a few other countries have a
system of “post-dating” whereby the filing date of an application is changed to a
later date
spect to the right of priority, it is disregarded for this purpose.
35 U.S.C.
119(c)
extends the right of priority to “subsequent” foreign
applications if one earlier filed had been withdrawn, abandoned, or otherwise
disposed of, under certain conditions.
The United Kingdom and a few other countries have a
system of “post-dating” whereby the filing date of an application is changed to a
later date. This “post-dating” of the filing date of the application does not affect
the status of the application with respect to the right of priority; if the original
filing date is more than one year prior to the U.S. filing no right of priority can
be based upon the application. See
In re Clamp,
151 USPQ 423
(Comm’r Pat. 1966).
If an applicant has filed two foreign applications in
recognized countries, one outside the year and one within the year, and the later
application discloses additional subject matter, a claim in the U.S. application
specifically limited to the additional disclosure would be entitled to the date of
the second foreign application since this would be the first foreign application for
that subject matter.
III.
RESTORING THE RIGHT OF PRIORITY
Effective December 18, 2013, title II of the Patent Law
Treaties Implementation Act (PLTIA) provides for restoration of the right of priority
under
35 U.S.C.
119(a)
through
(d)
and
(f)
,
172
, and
365(a)
or
(b)
. As
provided in
37
CFR 1.55(c)
, if the subsequent application has a filing date
which is after the expiration of the twelve-month period (or six-month period in the
case of a design application), but within two months from the expiration of the
period, the right of priority in the subsequent application may be restored under
PCT Rule
26bis.3
for an international application,
or upon petition under
37 CFR 1.55(c)
, if the delay in
filing the subsequent application within the period was unintentional. Thus, an
application may now validly claim priority under
35 U.S.C. 119(a) through (d) and
but within two months from the expiration of the
period, the right of priority in the subsequent application may be restored under
PCT Rule
26bis.3
for an international application,
or upon petition under
37 CFR 1.55(c)
, if the delay in
filing the subsequent application within the period was unintentional. Thus, an
application may now validly claim priority under
35 U.S.C. 119(a) through (d) and
(f)
,
172
,
365(a) or (b)
,
or
386(a)
or (b)
to a foreign application filed up to fourteen months
earlier (or eight months earlier in the case of a design application). As a result of
title I of the PLTIA,
37 CFR 1.55(c)
was amended
effective May 13, 2015, to provide that restoration of the right of priority is
available for priority claims under
35 U.S.C. 386(a)
or
(b)
. In addition,
37 CFR 1.55(c)
was amended to
provide that a petition to restore the right of priority filed on or after May 13,
2015, must be filed in the subsequent application, or in the earliest nonprovisional
application claiming benefit under
35 U.S.C. 120
,
121
,
365(c)
, or
386(c)
to the subsequent
application, if such subsequent application is not a nonprovisional application.
A petition under
37 CFR 1.55(c)
requires:
(A) the priority claim under
35 U.S.C.
119(a)
through
(d)
or
(f)
,
365(a)
or
(b)
, or
386(a)
or
(b)
in an application data
sheet, identifying the foreign application to which priority is claimed, by
specifying the application number, country (or intellectual property
authority), day, month, and year of its filing (unless previously submitted in
an application data sheet);
(B) the petition fee as set forth in
37 CFR 1.17(m)
; and
(C) a statement that the delay in filing the
subsequent application within the twelve-month period (or six-month period in
the case of a design application) set forth in
37 CFR
1.55(b)
was unintentional.
The Director may require additional information where
there is a question whether the delay was unintentional
an application data sheet);
(B) the petition fee as set forth in
37 CFR 1.17(m)
; and
(C) a statement that the delay in filing the
subsequent application within the twelve-month period (or six-month period in
the case of a design application) set forth in
37 CFR
1.55(b)
was unintentional.
The Director may require additional information where
there is a question whether the delay was unintentional.
Where the subsequent application is not a
nonprovisional application, the Office may not have an application file established
for the subsequent application. This would occur, for example, where an international
application designating the United States was filed in a foreign Receiving Office and
the applicant filed a continuation of an international application under
35 U.S.C.
111(a)
rather than entering the national stage under
35 U.S.C.
371
. Thus, in this situation, the petition under
37 CFR
1.55(c)
may be filed in the earliest nonprovisional application
claiming benefit under
35 U.S.C. 120
,
121
,
365(c)
, or
386(c)
to the subsequent
application. However, the statement required under
37 CFR
1.55(c)(3)
must still relate to the unintentional delay in
filing the subsequent application, i.e., the international application.
If a petition under
37 CFR
1.55(c)
to restore the right of priority is granted, a further
petition under
37 CFR 1.55(c)
is not required in an application entitled to
claim the benefit under
35 U.S.C. 120
,
121
,
365(c)
, or
386(c)
of the subsequent
application for which the right of priority was restored. A copy of the decision
granting the petition should be filed with any application claiming the benefit of
the subsequent application and the foreign application to ensure that the Office
recognizes that the right of priority has been restored.
It should be noted that although an application may now
validly claim priority under
35 U.S.C. 119(a)
through
(d)
and
(f)
,
172
,
365(a)
or
(b)
, or
386(a)
or
copy of the decision
granting the petition should be filed with any application claiming the benefit of
the subsequent application and the foreign application to ensure that the Office
recognizes that the right of priority has been restored.
It should be noted that although an application may now
validly claim priority under
35 U.S.C. 119(a)
through
(d)
and
(f)
,
172
,
365(a)
or
(b)
, or
386(a)
or
(b)
to a foreign application
filed up to fourteen months earlier (or eight months earlier in the case of a design
application) in view of the restoration provision of
37 CFR
1.55(c)
, an application subject to examination under pre-AIA
first to invent laws (rather than the first inventor to file provisions of the AIA)
would still be subject to the 12-month statutory time periods in
pre-AIA 35 U.S.C.
102(b)
and
(d)
which are measured from the
U.S. filing date. Thus, the application may still be subject to a rejection under
pre-AIA 35
U.S.C. 102(b)
or
(d)
despite the priority claim.
See
MPEP §§
2133
and
2135
et seq.

## 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_S213.03. Check the current official text before relying on it. Not legal advice.