1

An NFOA includes that the "[s]hortened statutory period for reply is set to expire 3 months from the mailing date of [that] communication"; however, the language mailing date appears rather ambiguous: There is nowhere a date printed as "the mailing date".

There is only a "[n]otifcation [d]ate" on the front page. If it is that, it still begs the question: Does it mean you may file on the corresponding date of the month until 23:59 PM ET, or you must submit on the date before. (for e.g. Notification Date March 8, 2021, is the filing deadline then June 8 23:59 PM ET or June 7 23:59 PM ET?)

If the mailing date is, in fact, not the "[n]otifcation [d]ate", then what is? The date of the applicants receipt or date when the mailing was initiated by the office?

1

It does not depend upon when you received it. A few places in the MPEP and Federal register you see something like

. . . email notification is delivered a few days later than the mailroom/notification date, the participant should . . .

. . . patent term extension means the mailroom/notification date indicated on .. .

You can read about calculating the dates in the MPEP at Period for Reply. An example give in the "710.01(a) How Computed" section is

No cognizance is taken of fractions of a day and applicant’s reply is due[, per Eastern Standard Time or Eastern Day Time as applicable,] 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 [by 23:59 PM EDT] and not on the last day of May. Ex parte Messick, 7 USPQ 57 (Comm’r Pat. 1930).

Note - time zone info not part of the quoted MPEP text.

2
  • Thank you, this clarified the case! Sep 6 at 20:40
  • Some people overlook the fact that, at least with electronic submissions, the hours of the day are indeed considered in that one must file on the particular day before midnight according to Eastern Standard Time or Eastern Day Time as applicable. (I had an attorney who didn't know it and we lapsed.) (Maybe if filing goes through the local post office in a say, Hawaii or Alaska, and they stamp it according the day although it is already past midnight per EST or EDT, it might be accepted, and would likely be accepted if there wasn't indication about the mailing time.) Sep 6 at 20:40

Your Answer

By clicking “Post Your Answer”, you agree to our terms of service, privacy policy and cookie policy

Not the answer you're looking for? Browse other questions tagged or ask your own question.