305    Mailing Documents to the Office

305.01    Mailing Addresses

Documents filed through TEAS are automatically sent to the appropriate location.

For trademark-related documents filed on paper, except for documents sent to the Assignment Recordation Branch for recordation, requests for copies of trademark documents, and certain documents filed under the Madrid Protocol (listed below), all trademark-related correspondence that is mailed to the USPTO should be addressed to:

Commissioner for Trademarks

P.O. Box 1451

Alexandria,

Virginia

22313-1451

The names of individual employees should not be placed on the envelopes in which official communications are sent to the USPTO.  Envelopes may be marked "Attention:  Trademark Examining Operation."  Responses to Office actions should include the name of the examining attorney in the heading.

Documents Filed Under the Madrid Protocol

International applications under 37 C.F.R. §7.11, subsequent designations under 37 C.F.R. §7.21, responses to irregularity notices under 37 C.F.R. §7.14, requests to record changes in the International Register under 37 C.F.R. §§7.23  and 7.24, requests for transformation under 37 C.F.R. §7.31, requests to note replacement under 37 C.F.R. §7.28,and petitions to the Director to review the actions of the USPTO’s Madrid Processing Unit, when filed by mail, must be mailed to:

Madrid Processing Unit

600 Dulany Street

Alexandria

Virginia

22314-5793

37 C.F.R. §§2.190(e), 7.4(b).

Documents to be Recorded in Assignment Recordation Branch

To expedite processing, the USPTO recommends filing requests to record documents through the USPTO website, at http://etas.uspto.gov.  Documents filed electronically are recorded much faster than their paper counterparts.  Unless they are filed together with new applications, paper documents and cover sheets to be recorded in the Assignment Recordation Branch should be sent to Mail Stop Assignment Recordation Services, Director of the United States Patent and Trademark Office, P. O. Box 1450, Alexandria VA  22313‑1450.  37 C.F.R. §§2.190(c), 3.27.

Requests for Copies of Trademark Documents

Copies of trademark documents can be ordered through the USPTO website at http://www.uspto.gov.  Requests for copies of documents can also be faxed or e-mailed to the USPTO, with an authorization to charge the fee to a credit card or USPTO deposit account.  See TMEP §111 for additional information.

All other requests for certified or uncertified copies of trademark documents should be sent to:  Mail Stop Document Services, Director of the United States Patent and Trademark Office, P. O. Box 1450, Alexandria VA  22313‑1450.  37 C.F.R. §2.190(d).

305.02    Certificate of Mailing Procedure

37 C.F.R. §2.197  Certificate of mailing or transmission.

  • (a) Except in the cases enumerated in paragraph (a)(2) of this section, correspondence required to be filed in the Office within a set period of time will be considered as being timely filed if the procedure described in this section is followed.  The actual date of receipt will be used for all other purposes.
  • (1) Correspondence will be considered as being timely filed if:
  • (i) The correspondence is mailed or transmitted prior to expiration of the set period of time by being:
  • (A) Addressed as set out in §2.190 and deposited with the U.S. Postal Service with sufficient postage as first class mail; or
  • (B) Transmitted by facsimile to the Office in accordance with §2.195(c); and
  • (ii) The correspondence includes a certificate for each piece of correspondence stating the date of deposit or transmission.  The person signing the certificate should have a reasonable basis to expect that the correspondence would be mailed or transmitted on or before the date indicated.
  • (2) The procedure described in paragraph (a)(1) of this section does not apply to:
  • (i) Applications for the registration of marks under 15 U.S.C. 1051 or 1126; and
  • (ii) Madrid-related correspondence filed under §7.11, §7.21, §7.14, §7.23, §7.24 or §7.31.
  • (b) In the event that correspondence is considered timely filed by being mailed or transmitted in accordance with paragraph (a) of this section, but not received in the Office, and an application is abandoned, a registration is cancelled or expired, or a proceeding is dismissed, terminated, or decided with prejudice, the correspondence will be considered timely if the party who forwarded such correspondence:
  • (1) Informs the Office of the previous mailing or transmission of the correspondence within two months 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 that attests on a personal knowledge basis or to the satisfaction of the Director to the previous timely mailing or transmission.  If the correspondence was sent by facsimile transmission, a copy of the sending unit’s report confirming transmission may be used to support this statement.
  • (c) The Office may require additional evidence to determine whether the correspondence was timely filed.

In 37 C.F.R. §2.197, there is a "certificate of mailing or transmission" procedure to avoid lateness due to mail delay for certain trademark correspondence.  See TMEP §305.02(a) regarding trademark correspondence excluded from the certificate of mailing or transmission procedure. Under the certificate of mailing or transmission procedure, correspondence is considered to be timely even if received after the due date, if the correspondence was:  (1) deposited with the United States Postal Service as first-class mail or transmitted to the USPTO by facsimile transmission before the expiration of the filing period; and (2) accompanied by a certificate attesting to the date of deposit or transmission. 37 C.F.R. §2.197(a).

Filers must retain a copy of the correspondence, including the signed and dated certificate.   See In re Sasson Licensing Corp., 35 USPQ2d 1510, 1512 (Comm’r Pats. 1995).

See TMEP §§305.02(a)–305.02(h) regarding the certificate of mailing procedure, and TMEP §§306.05–306.05(d) regarding the certificate of facsimile transmission procedure.

305.02(a)    When Certificate of Mailing Procedure May Not Be Used

The certificate of mailing procedure may be used for all trademark correspondence except:

37 C.F.R. §§2.197(a)(2), 7.4(e).

305.02(b)    Mailing Requirements

The correspondence must be properly addressed (see TMEP §305.01 for mailing addresses), and must be deposited with the U.S. Postal Service (USPS) with sufficient postage as first-class mail. Since first-class mail services of the USPS are not available in foreign countries, the certificate of mailing procedure may not be used for sending mail to the USPTO from a foreign country.

305.02(c)    Location and Form of Certificate

The certificate of mailing:  (1) must state the date of deposit in the mail, which must be a date within the set filing period (this includes the last day of the period, or the succeeding day that is not a Saturday, Sunday, or Federal holiday within the District of Columbia when the last day of the period falls on a Saturday, Sunday, or Federal holiday within the District of Columbia); and (2) should be signed by a person who has a reasonable basis to expect the correspondence to be deposited in the mail on the date indicated.  37 C.F.R. §2.197(a)(1). The signature of the certificate must be separate from any signature for the correspondence being deposited.

The best location for the certificate of mailing is at the beginning of the correspondence to which it pertains, typed in its entirety. The certificate of mailing should be separated from contents of the correspondence that are on the same page.  Several blank lines between the contents and the certificate will suffice.

If the certificate of mailing does not fit on the correspondence to which it pertains, the certificate may be placed on a separate sheet of paper that is attached securely to the correspondence.  The separate sheet must exhibit or bear a complete identification of the nature of the document or fee as well as an identification of the application, registration, and/or proceeding to which the document pertains (including serial number or registration number).  The separate sheet may be a cover letter or transmittal letter, with the certificate placed at the bottom of the letter and signed separately from the letter.  If there is any doubt concerning the correspondence to which a certificate of mailing on a separate sheet relates, the USPTO will not accept the certificate.

There must be a certificate of mailing for each piece of correspondence.  When correspondence for more than one application or registration is mailed in a single envelope, each item of correspondence must have its own certificate of mailing.  Similarly, when more than one type of correspondence is submitted in connection with the same application, each item of correspondence must have its own certificate of mailing.

It is suggested that the certificate be signed by the applicant or the party involved in the proceeding, or by the attorney for such person.  If someone else signs, it should be a responsible person in a position to know that the mail will be deposited on the date specified.

The USPTO accepts the date of deposit stated in the certificate of mailing on the basis of the statement of personal knowledge.  The USPTO does not normally inspect the postmark on the envelope.

305.02(d)    Wording of Certificate of Mailing

The following wording is suggested for the certificate of mailing.

Sample certificate of mailing with the text "I hereby certify that this correspondence is being deposited with the United States Postal Service as first class mail in an envelope addressed to: Commissioner for Trademarks, P.O. Box 1451, Alexandria, Virginia 22313-1451 on the date shown below:" and lines for the typed or printed name of the signatory, the signature, and the date.

305.02(e)    Effect of Certificate of Mailing

The filing date assigned to paper correspondence is the date of actual receipt in the USPTO.  37 C.F.R. §2.195(a).  The USPTO does not retain the envelopes in which material is received or record the date of the postmark.

The date of deposit indicated on the certificate of mailing is used only to determine whether the correspondence was deposited with the USPS within the filing period.   See 37 C.F.R. §2.197(a). Therefore, if the correspondence is actually received in the USPTO within the filing period, the certificate of mailing is ignored.  If, however, the USPTO receives the correspondence after the filing period has expired, the USPTO looks to see whether a certificate of mailing was included.  If no certificate is found, the correspondence is untimely.

When a document received after the expiration of the filing period includes a signed certificate of mailing, and the date of deposit on the certificate is within the filing period, the USPTO considers the correspondence to be timely filed.

If the filing period ends on a Saturday, Sunday, or Federal holiday within the District of Columbia, the correspondence is considered timely if the date of deposit on the certificate of mailing is the next succeeding day that is not a Saturday, Sunday or Federal holiday within the District of Columbia ( see 37 C.F.R. §2.196; TMEP §308).

Whenever it is necessary to change the effective filing date of an application (e.g., when an application filed under §1(b) of the Trademark Act is amended to request registration on the Supplemental Register after submission of an allegation of use), the date of actual receipt rather than the date on the certificate is the new effective filing date.  See TMEP §§206–206.04 regarding changes in the effective filing date of an application.

305.02(f)    Correspondence Mailed Pursuant to 37 C.F.R. §2.197  but Not Received by Office

If correspondence filed with a certificate of mailing is not received by (or is lost within) the USPTO, the USPTO will consider the correspondence to be timely based on the date of deposit stated in the certificate of mailing if the party who filed the correspondence:

  • (1) informs the USPTO in writing of the previous mailing 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 mailed correspondence, including a copy of the signed and dated certificate of mailing ( 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 mailing. This statement does not have to be verified.

37 C.F.R. §2.197(b).

The two-month time period for notifying the USPTO begins to run from the date that the party who filed the correspondence became aware that the USPTO has no evidence of receipt of the correspondence, unless the USPTO has issued a written action, such as a notice of abandonment or cancellation. In such situations, the issue date of the USPTO written action will serve as the starting point for measuring timeliness. See 37 C.F.R. §§2.146(d), 2.197(b)(1); TMEP §1705.04.

The required evidence should be sent 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 all three criteria listed above 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 mailing, along with any additional evidence.  See TMEP §§1702–1708 regarding petitions under 37 C.F.R. §2.146, and TMEP §§1714–1714.01(g) regarding petitions to revive.

The above procedure does not apply to the filing of an application for registration of a mark, or to the Madrid-related documents listed in 37 C.F.R. §2.197(a)(2)  and TMEP §305.02(a).

The USPTO may require additional evidence relating to the mailing or transmission of correspondence.  37 C.F.R. §2.197(c).  

305.02(g)    Correspondence Deposited as First-Class Mail Pursuant to 37 C.F.R. §2.197 and Returned by the U.S. Postal Service

Correspondence must be deposited with the USPS as first-class mail in compliance with any and all applicable requirements of the USPS to be considered "[d]eposited with the U.S. Postal Service," within the meaning of 37 C.F.R. §2.197(a)(1)(i)(A).  Therefore, correspondence returned by the USPS as not mailed in compliance with USPS requirements, including concerning mail weighing more than the USPS maximum permissible weight, is not entitled to any benefit under 37 C.F.R. §2.197.  

305.02(h)    Certificate of Mailing Requirements Strictly Enforced

The requirements of 37 C.F.R. §2.197  are strictly enforced, and the USPTO denies petitions to consider a document timely filed as of the date on the certificate if a party fails to comply with these requirements.

A party’s inadvertent failure to comply with the requirements of a rule is not considered an extraordinary situation that would warrant waiver of a rule under 37 C.F.R. §2.146(a)(5)  or 37 C.F.R. §2.148.  See Honigsbaum v. Lehman, 903 F. Supp. 8, 37 USPQ2d 1799 (D.D.C. 1995) (finding Commissioner did not abuse discretion in refusing to waive requirements of 37 C.F.R. §1.10(c) and grant filing date to patent application, where applicant failed to produce "Express Mail" customer receipt or any other evidence that application was actually deposited with USPS as "Express Mail"), aff’d mem., 95 F.3d 1166 (Fed. Cir. 1996); In re Sasson Licensing Corp., 35 USPQ2d 1510, 1512 (Comm’r Pats. 1995) (noting that failure to retain an executed hard copy of documents filed with the USPTO is not an extraordinary circumstance that would justify waiver of 37 C.F.R. §1.8); Gustafson v. Strange, 227 USPQ 174 (Comm’r Pats. 1985) (finding counsel’s unawareness of the provisions of 37 C.F.R. §1.8 is not an extraordinary situation warranting waiver of the rule); In re Chicago Historical Antique Auto. Museum, Inc., 197 USPQ 289 (Comm’r Pats. 1978) (finding lateness caused by mailing documents on the last day of the filing period is not an extraordinary situation justifying waiver of the rules, because certificate of mailing procedure under 37 C.F.R. §1.8 was available to petitioner).

305.03    Priority Mail Express®

37 C.F.R. §2.198  Filing of correspondence by Priority Mail Express®.

  • (a)(1) Except for documents listed in paragraphs (a)(1)(i) through (vii) of this section, any correspondence received by the Office that was delivered by the Priority Mail Express® Post Office to Addressee service of the United States Postal Service (USPS) will be considered filed with the Office on the date of deposit with the USPS.  The Priority Mail Express® procedure does not apply to:
  • (i) Applications for registration of marks;
  • (ii) Amendments to allege use under section 1(c) of the Act;
  • (iii) Statements of use under section 1(d) of the Act;
  • (iv) Requests for extension of time to file a statement of use under section 1(d) of the Act;
  • (v) Affidavits of continued use under section 8 of the Act;
  • (vi) Renewal requests under section 9 of the Act;
  • (vii) Requests to change or correct addresses; and
  • (viii) Affidavits of use under section 71 of the Act.
  • (2) The date of deposit with USPS is shown by the "date accepted" on the Priority Mail Express® label or other official USPS notation.  If the USPS deposit date cannot be determined, the correspondence will be accorded the date of receipt in the Office as the filing date.
  • (b) Correspondence should be deposited directly with an employee of the USPS to ensure that the person depositing the correspondence receives a legible copy of the Priority Mail Express® mailing label with the "date accepted" clearly marked.  Persons dealing indirectly with the employees of the USPS (such as by deposit in a Priority Mail Express® drop box) do so at the risk of not receiving a copy of the Priority Mail Express® mailing label with the desired "date accepted" clearly marked.  The paper(s) or fee(s) that constitute the correspondence should also include the Priority Mail Express® mailing label number thereon.   See paragraphs (c), (d) and (e) of this section.
  • (c) Any person filing correspondence under this section that was received by the Office and delivered by the Priority Mail Express® Post Office to Addressee service of the USPS, who can show that there is a discrepancy between the filing date accorded by the Office to the correspondence and the date of deposit as shown by the "date accepted" on the Priority Mail Express® mailing label or other official USPS notation, may petition the Director to accord the correspondence a filing date as of the "date accepted" on the Priority Mail Express® mailing label or other official USPS notation, provided that:
  • (1) The petition is filed within two months after the person becomes aware that the Office has accorded, or will accord, a filing date other than the USPS deposit date;
  • (2) The number of the Priority Mail Express® mailing label was placed on the paper(s) or fee(s) that constitute the correspondence prior to the original mailing; and
  • (3) The petition includes a true copy of the Priority Mail Express® mailing label showing the "date accepted," and of any other official notation by the USPS relied upon to show the date of deposit.
  • (d) Any person filing correspondence under this section that was received by the Office and delivered by the Priority Mail Express® Post Office to Addressee service of the USPS, who can show that the "date accepted" on the Priority Mail Express® mailing label or other official notation entered by the USPS was incorrectly entered or omitted by the USPS, may petition the Director to accord the correspondence a filing date as of the date the correspondence is shown to have been deposited with the USPS, provided that:
  • (1) The petition is filed within two months after the person becomes aware that the Office has accorded, or will accord, a filing date based upon an incorrect entry by the USPS;
  • (2) The number of the Priority Mail Express® mailing label was placed on the paper(s) or fee(s) prior to the original mailing; and
  • (3) The petition includes a showing that establishes, to the satisfaction of the Director, that the correspondence was deposited in the Priority Mail Express® Post Office to Addressee service prior to the last scheduled pickup on the requested filing date.  Any showing pursuant to this paragraph must be corroborated by evidence from the USPS or evidence that came into being within one business day after the deposit of the correspondence in the Priority Mail Express® Post Office to Addressee service of the USPS.
  • (e) If correspondence is properly addressed to the Office pursuant to §2.190 and deposited with sufficient postage in the Priority Mail Express® Post Office to Addressee service of the USPS, but not received by the Office, the party who mailed the correspondence may petition the Director to consider such correspondence filed in the Office on the USPS deposit date, provided that:
  • (1) The petition is filed within two months after the person becomes aware that the Office has no evidence of receipt of the correspondence;
  • (2) The number of the Priority Mail Express® mailing label was placed on the paper(s) or fee(s) prior to the original mailing;
  • (3) The petition includes a copy of the originally deposited paper(s) or fee(s) showing the number of the Priority Mail Express® mailing label thereon, a copy of any returned postcard receipt, a copy of the Priority Mail Express® mailing label showing the "date accepted," a copy of any other official notation by the USPS relied upon to show the date of deposit, and, if the requested filing date is a date other than the "date accepted" on the Priority Mail Express® mailing label or other official notation entered by the USPS, a showing pursuant to paragraph (d)(3) of this section that the correspondence was deposited in the Priority Mail Express® Post Office to Addressee service prior to the last scheduled pickup on the requested filing date; and
  • (4) The petition includes a statement that establishes, to the satisfaction of the Director, the original deposit of the correspondence and that the copies of the correspondence, the copy of the Priority Mail Express® mailing label, the copy of any returned postcard receipt, and any official notation entered by the USPS are true copies of the originally mailed correspondence, original Priority Mail Express® mailing label, returned postcard receipt, and official notation entered by the USPS.
  • (f) The Office may require additional evidence to determine whether the correspondence was deposited as Priority Mail Express® with the USPS on the date in question.

Documents Excluded From 37 C.F.R. §2.198 

Trademark Rule 2.198, 37 C.F.R. §2.198, provides a procedure for obtaining a filing date as of the date that correspondence is deposited as Priority Mail Express® with the USPS.  However, this procedure does not apply to the following trademark documents:

37 C.F.R. §§2.198(a)(1), 7.4(b)(2).  If the documents listed above are filed by Priority Mail Express®, they will receive a filing date as of the date of receipt in the USPTO and notthe date of deposit with USPS.  37 C.F.R. §2.195(a); see TMEP §303.01.

Lost Documents

If one of the documents listed above is sent by Priority Mail Express® but is lost within the USPTO, and the applicant or registrant presents proof of actual receipt in the form of evidence that a USPTO employee signed for or acknowledged the Priority Mail Express® package (e.g., a Priority Mail Express® mailing label that bears an Office date stamp or label or the signature of a USPTO employee, or evidence from the USPS website showing that the document was actually received in the USPTO), the USPTO will grant the document a filing date as of the date of actual receipt in the USPTO.  The applicant or registrant must submit a true copy of the document(s) and an affidavit or declaration under 37 C.F.R. §2.20  attesting to the contents of the Priority Mail Express® package.  See TMEP §1711 regarding restoration of application filing dates, TMEP §1712.01 regarding reinstatement of abandoned applications, and TMEP §§1712.02–1712.02(b) regarding reinstatement of cancelled or expired registrations.

If a document is sent by Priority Mail Express® but is not received by or is lost within the USPTO, and the applicant does not have proof of actual receipt in the USPTO, the USPTO will not grant a filing date to the document.

Certificate of Mailing Under 37 C.F.R. §2.197  for Documents Sent by Priority Mail Express®

For documents other than applications for registration of marks and the Madrid-related documents listed in 37 C.F.R. §2.197(a)(2)  ( see TMEP §305.02(a)), the certificate of mailing procedure of 37 C.F.R. §2.197  may be used for documents sent by Priority Mail Express® as well as documents sent by first-class mail.  Under the certificate of mailing procedure, correspondence is considered to be timely filed even if received after the due date, if the correspondence is deposited with the USPS with sufficient postage as first-class mail before the expiration of the filing period and accompanied by a certificate attesting to the date of deposit.  Correspondence sent by Priority Mail Express® is deemed to meet the requirements of 37 C.F.R. §2.197(a)(1)(i)(A)  for postage as first-class mail, because the postage for Priority Mail Express® exceeds the postage required for first-class mail.  However, to use the certificate of mailing procedure for documents mailed by Priority Mail Express®, the filer must place a certificate attesting to the date of deposit and meeting the requirements of 37 C.F.R §2.197(a)(1)(ii)  on the document prior to mailing.  See TMEP §§305.02–305.02(h) for further information about the certificate of mailing procedure.

The following wording is suggested for a certificate of mailing when correspondence is sent by Priority Mail Express®:

Sample certificate of mailing for express mail with the following text "I hereby certify that this correspondence is being deposited with the United States Postal Service as Priority Mail Express® in an envelope addressed to: Commissioner for Trademarks, P.O. Box 1451, Alexandria, Virginia 22313-1451 on the date shown below:" and lines for the typed or printed name of the signatory, the signature, and the date.

Documents Not Excluded From 37 C.F.R. §2.198 

The procedures for filing documents by Priority Mail Express® under 37 C.F.R. §2.198  may be used for documents not expressly excluded by37 C.F.R. §2.198(a), e.g., documents filed with the Board or the Assignment Recordation Branch of the Office.  These documents are entitled to a filing date as of the date of deposit with USPS if the filer meets the requirements of 37 C.F.R. §2.198.  The rule requires:  (1) the document must be sent through the Priority Mail Express® Post Office to Addressee service of the USPS; (2) it must be deposited prior to the last scheduled pickup on the relevant date; (3) it must be properly addressed in accordance with the requirements of 37 C.F.R. §2.190; and (4) the number of the Priority Mail Express® mailing label must be placed on the document prior to mailing.

If a document is filed in accordance with the requirements of 37 C.F.R. §2.198, but the document is not given a filing date as of the date of deposit as Priority Mail Express®, the filer may request the USPTO to change the filing date of the document, pursuant to 37 C.F.R. §2.198(c), (d), or (e).  Rule 2.198(c) applies when there is a discrepancy between the filing date assigned by the USPTO and the "date accepted" entered by the USPS on the Priority Mail Express® mailing label; Rule 2.198(d) applies when the "date accepted" is incorrectly entered or omitted by the USPS; and Rule 2.198(e) applies when correspondence deposited with the USPS as Priority Mail Express® is not received by (or is lost within) the USPTO.  A petition to change the filing date of a document pursuant to 37 C.F.R. §2.198  must:

  • (1)   be filed within two months of the issuance date of the action from which relief is requested, or, if there is no "issuance of an action," within two months of the date that the party who filed the correspondence became aware that there was a problem with the USPTO’s receipt of the correspondence (37 C.F.R. §§2.146(d), 2.198(c)(1), 2.198(d)(1), 2.198(e)(1); TMEP §1705.04);
  • (2) include a showing that the number of the Priority Mail Express® mailing label was placed on the correspondence prior to the original mailing (37 C.F.R. §§2.198(c)(2), 2.198(d)(2), 2.198(e)(2) );
  • (3) if the filer contends that there is a discrepancy between the filing date assigned by the USPTO and the "date accepted" entered by the USPS, include a true copy of the Priority Mail Express® mailing label with the "date accepted" clearly marked (37 C.F.R. §§2.198(c)(3) );
  • (4)   if the filer contends that the "date accepted" was entered incorrectly or omitted by the USPS, include:  (a) a showing that the correspondence was deposited as Priority Mail Express® prior to the last scheduled pickup on the requested filing date; and (b) evidence from the USPS or evidence that came into being after deposit and within one business day of the deposit of the correspondence as Priority Mail Express® (37 C.F.R. §2.198(d)(3) ); and
  • (5) if the correspondence is lost within or never received by the USPTO, include:  (a) a true copy of the originally deposited correspondence showing the number of the Priority Mail Express® mailing label; and (b) a statement, signed by the person who deposited the documents as Priority Mail Express® with the USPS, setting forth the date and time of deposit, and stating that the copies of the correspondence and Priority Mail Express® mailing label accompanying the petition are true copies of those originally sent (37 C.F.R. §§2.198(e)(3), 2.198(e)(4)).

When correspondence to which 37 C.F.R. §2.198(a)  applies is placed in a Priority Mail Express® drop box after the box has been cleared for the last time on a given day, it is considered to have been deposited as of the date of receipt indicated on the Priority Mail Express® mailing label by the USPS employee.   See Communications with the Patent and Trademark Office, 61 Fed. Reg. 56,439, 56,445 (Nov. 1, 1996).

305.04    Interruptions in U.S. Postal Service

35 U.S.C. 21(a) 

The Director may by rule prescribe that any paper or fee required to be filed in the Patent and Trademark Office will be considered filed in the Office on the date on which it was deposited with the United States Postal Service or would have been deposited with the United States Postal Service but for postal service interruptions or emergencies designated by the Director.

37 C.F.R. §2.195(e)  Interruptions in U.S. Postal Service.

  • (1) If the Director designates a postal service interruption or emergency within the meaning of 35 U.S.C. 21(a),  any person attempting to file correspondence by Priority Mail Express® Post Office to Addressee service who was unable to deposit the correspondence with the United States Postal Service due to the interruption or emergency may petition the Director to consider such correspondence as filed on a particular date in the Office.
  • (2) The petition must:
  • (i) Be filed promptly after the ending of the designated interruption or emergency;
  • (ii) Include the original correspondence or a copy of the original correspondence; and
  • (iii) Include a statement that the correspondence would have been deposited with the United States Postal Service on the requested filing date but for the designated interruption or emergency in Priority Mail Express® service; and that the correspondence attached to the petition is the original correspondence or a true copy of the correspondence originally attempted to be deposited as Priority Mail Express® on the requested filing date.
  • (3) Paragraphs (e)(1) and (e)(2) of this section do not apply to correspondence that is excluded from the Priority Mail Express® procedure pursuant to §2.198(a)(1).

Under 35 U.S.C. §21(a)  and 37 C.F.R. §2.195(e), if there is an interruption or emergency in the United States Postal Service, the Director may consider correspondence to have been filed in the Office on a particular date if the correspondence or a copy thereof is:  (1) filed promptly after the ending of the designated interruption or emergency; and (2) accompanied by a statement indicating that such correspondence would have been filed on that particular date if it were not for the designated interruption or emergency in the United States Postal Service.  This procedure does not apply to correspondence that is excluded from the Priority Mail Express® procedure pursuant to §2.198(a)(1).  37 C.F.R. §2.195(e)(3).  See TMEP §305.03 regarding Priority Mail Express®.