306.05(d)    Correspondence Transmitted by Fax Pursuant to 37 C.F.R. §2.197 but Not Received by Office

Rule 2.197(b) sets forth procedures for requesting that correspondence be considered timely when the correspondence is filed with a certificate of transmission, but is not received by or is lost within the USPTO.  Such correspondence will be considered timely based on the date of transmission set forth on the certificate of transmission, if the party who transmitted the correspondence:

  • (1) informs the USPTO in writing of the previous fax transmission of the correspondence within two months after becoming aware that the USPTO has no evidence of receipt of the correspondence;
  • (2) supplies an additional copy of the previously transmitted correspondence, including a copy of the signed and dated certificate of transmission ( see In re Sasson Licensing Corp., 35 USPQ2d 1510, 1512 (Comm’r Pats. 1995)); and
  • (3) includes a statement attesting, based on personal knowledge or to the satisfaction of the Director, to the previous timely transmission.  A copy of the sending unit’s report confirming transmission may be used to support this statement.  The statement does not have to be verified.

The party who transmitted the correspondence must notify the USPTO of the transmission of the correspondence within two months after becoming aware that the USPTO has no evidence of receipt of the correspondence.  37 C.F.R. §2.197(b)(1).  Where no written action is generated that can be used as a starting point for measuring timeliness, the two-month deadline runs from the date that the party who filed the correspondence became aware that there was a problem with the filing date.   See TMEP §1705.04.

The required evidence should be directed to the area in the USPTO where the misplaced or lost document was intended to be filed, e.g., the law office, ITU/Divisional Unit, or Post Registration Section.

If allthe above criteria cannot be met, the only remedy available is a petition to revive under 37 C.F.R. §2.66  (if appropriate), or a petition under 37 C.F.R. §2.146,which must include a petition fee, and a statement that attests on a personal knowledge basis to the previous timely transmission, along with any additional evidence.  See 37 C.F.R. §§2.66, 2.146; TMEP §§1702–1708 regarding petitions under 37 C.F.R. §2.146, TMEP §§1714–1714.01(g) regarding petitions to revive, and TMEP §1712 regarding reinstatement of applications and registrations.

The above procedure does notapply to submissions that are excluded from the certificate of mailing or transmission procedures under 37 C.F.R. §2.195(d)  or §2.197(a)(2).   See TMEP §306.01.

The USPTO may require evidence relating to the mailing or transmission of correspondence under 37 C.F.R. §2.197(a), to establish an actual date of transmission.  37 C.F.R. §2.197(c).