110.06 No receipt of Correspondence Bearing Certificate
In the event that correspondence intended for the USPTO is timely filed with an appropriate certificate of mailing or certificate of transmission, pursuant to 37 CFR § 2.197, but is not received in the Office, and there is a resulting Office action, in a proceeding or an application, which is adverse to the submitting party, the correspondence will be considered timely if the party which submitted it (1) informs the Office of the previous mailing or facsimile transmission of the correspondence promptly after becoming aware that the Office has no evidence of receipt of the correspondence, (2) supplies an additional copy of the previously mailed or transmitted correspondence and certificate, and (3) includes a statement attesting, on a personal knowledge basis or to the satisfaction of the Director, to the previous timely mailing or transmission. The statement must be verified if it is made by a person other than a practitioner, as that term is defined in 37 CFR § 11.1. If the correspondence was appropriate for filing by fax transmission, a copy of the sending fax machine’s report confirming transmission may be used to support the statement. See also TBMP § 107 (How and Where to File Papers and Fees). [ Note 1.] If the document is not one authorized to be filed by facsimile transmission, the document will not be accepted. [ Note 2.]
For lost or misplaced correspondence intended for the Board, the evidence required by 37 CFR § 2.197(b) should be submitted to the Board for consideration. If the requirements of 37 CFR § 2.197(b) cannot be met, the only alternative is a petition to the Director.
NOTES:
2. A notice of ex parte appeal to the Board is the only document that may be filed by fax. 37 CFR § 2.195(d)(3).