214.02 Unintentionally Delayed Priority Claims [R-11.2013]
37 C.F.R. 1.55 Claim for foreign priority.
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- (e) Delayed priority claim in an application filed under 35 U.S.C. 111(a). Unless such claim is accepted in accordance with the provisions of this paragraph, any claim for priority under 35 U.S.C. 119(a) through (d) or (f) or 365(a) in an original application filed under 35 U.S.C. 111(a) not presented in an application data sheet (§ 1.76(b)(6) ) within the time period provided by paragraph (d) of this section is considered to have been waived. If a claim for priority is presented after the time period provided by paragraph (d) of this section, the claim may be accepted if the priority claim was unintentionally delayed. A petition to accept a delayed claim for priority under through (d) or (f) or 365(a) must be accompanied by:
- (1) The priority claim under 35 U.S.C. 119(a) through (d) or (f) or 365(a) in an application data sheet (§ 1.76(b)(6) ), identifying the foreign application for which priority is claimed, by specifying the application number, country (or intellectual property authority), day, month, and year of its filing, unless previously submitted;
- (2) A certified copy of the foreign application if required by paragraph (f) of this section, unless previously submitted;
- (3) The surcharge set forth in § 1.17(t); and
- (4) A statement that the entire delay between the date the priority claim was due under paragraph (d) of this section and the date the priority claim was filed was unintentional. The Director may require additional information where there is a question whether the delay was unintentional.
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Pre-March 16, 2013 37 C.F.R. 1.55 Claim for foreign priority.
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- (c) Unless such claim is accepted in accordance with the provisions of this paragraph, any claim for priority under 35 U.S.C. 119(a) -(d) or 365(a) not presented in an application data sheet (§ 1.76(b)(6) ) within the time period provided by paragraph (a) of this section is considered to have been waived.
If a claim for priority under 35 U.S.C. 119(a) -(d) or 365(a) is presented after the time period provided by paragraph (a) of this section, the claim may be accepted if the claim identifying the prior foreign application by specifying its application number, country (or intellectual property authority), and the day, month, and year of its filing was unintentionally delayed. A petition to accept a delayed claim for priority under 35 U.S.C. 119(a) -(d) or 365(a) must be accompanied by:
- (1) The claim under 35 U.S.C. 119(a) -(d) or 365(a) and this section to the prior foreign application, unless previously submitted;
- (2) The surcharge set forth in § 1.17(t); and
- (3) A statement that the entire delay between the date the claim was due under paragraph (a)(1) of this section 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.
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If a claim for foreign priority is presented after the time period set in 37 CFR 1.55, the claim may be accepted if the priority claim was unintentionally delayed. In all applications, a grantable petition to accept an unintentionally delayed claim for priority must include: (1) the claim (i.e., the claim required by 35 U.S.C. 119(a)-(d) and (f) and 37 CFR 1.55) for priority to the prior foreign application, unless previously submitted; (2) the surcharge set forth in 37 CFR 1.17(t); and (3) a statement that the entire delay between the date the claim was due 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.
For applications filed on or after March 16, 2013, 37 CFR 1.55(e) also requires that a petition to accept a delayed claim for priority be accompanied by a certified copy of the foreign application if required by 37 CFR 1.55(f), unless previously submitted. Section 1.55(h)(4) permits applicants to request in a separate document that the Office obtain a copy of the foreign application that was filed in a nonparticipating intellectual property office from a participating intellectual property office that permits the Office to obtain such a copy to be filed with a petition under 37 CFR 1.55(e), and 37 CFR 1.55(i)(1) permits an interim copy to be filed with a petition under 37 CFR 1.55(e).
Priority claims and certified copies of foreign applications filed after payment of the issue fee will be placed in the application file but will not be reviewed.