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I submitted a provisional on 8/19/21 and had a few hiccups these past few weeks having me finishing up final touches on the last day to submit my non provisional patent. I had technical issues with the EFS web and a few other things bringing me very close to the time. After several phone calls to the USPTO I was able to move along. I was racing the clock and submitted it at 11:20pm on 8/19/22!

I get the confirmation back and I notice the time stamp had it at 12:20am 8/20/22! I nearly had a heart attack! I was racing against the wrong clock! I’m in Texas and had the central time zone as my countdown!

If I’m 21 minutes late to file do I loose priority from my provisional?

What can I do? And what should I expect?

This is my first rodeo and I feel like I messed it all up!

Any answers or guidance will be of great help!

Thanks Eric

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There is a way to fix this!

Prior to the AIA patent law change this was a hard, hard deadline with no way around it. For applications filed after May 13, 2015 it can be fixed with a petition as long as the entire time beyond the year was unintentional and less than two months.

A petition related to restoring the right of priority to a prior filed provisional application: If the subsequent nonprovisional application has a filing date which is after the expiration of the twelve-month period set forth in 37 CFR 1.78 (a)(1)(i) but within two months from the expiration of the period set forth in paragraph 37 CFR 1.78 (a)(1)(i), the benefit of the provisional application may be restored upon petition, if the delay in filing the subsequent nonprovisional application was unintentional.

Follow the directions very carefully. It will cost $500 under the current fee schedule if you qualify as a micro-entity.

Regarding the midnight deadline - as you found out, if filing electronically it goes by the time in Alexandria. However, if filing by paper using USPS Express Mail it goes by the time at the location of the deposit. This must be done a very specific way involving a human at a post office time and date stamping it and can be screwed up. If there was an open facility near you it was a possible way to go.

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  • I once contemplated having an application remotely printed at an all night FedEx in Hawaii and asking a friend of a friend pick it up and take it to the latest open post office on the island. They all closed by 9pm so it wouldn’t work.
    – George White ♦
    Aug 20, 2022 at 16:24

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