MPEP § 1306.01 — Deferring Issuance of a Patent

Ninth Edition, Revision 01.2024 · last revised R-01.2024

37 CFR 1.314  Issuance of patent.

If applicant timely pays the issue fee, the Office will issue the patent in regular course unless the application is withdrawn from issue (§ 1.313) or the Office defers issuance of the patent. To request that the Office defer issuance of a patent, applicant must file a petition under this section including the fee set forth in § 1.17(h) and a showing of good and sufficient reasons why it is necessary to defer issuance of the patent.

There is a public policy that the patent will issue in regular course once the issue fee is timely paid. 37 CFR 1.314. It has been the policy of the U.S. Patent and Trademark Office to defer issuance of a patent, upon request, for a period of up to 1 month only, in the absence of extraordinary circumstances or requirement of the regulations (e.g., 37 CFR 1.177) which would dictate a longer period. Situations like negotiation of licenses, time for filing in foreign countries, collection of data for filing a continuation-in-part application, or a desire for simultaneous issuance of related applications are not considered to amount to extraordinary circumstances.

A petition to defer issuance of a patent is not appropriate until the issue fee is paid. Issuance of a patent cannot be deferred after an allowed application receives a patent number and issue date unless the application is withdrawn from issue under 37 CFR 1.313(b) or (c). See MPEP § 1306.03. The petition to defer is considered at the time the petition is correlated with the application file before the appropriate deciding official (MPEP § 1002.02(b)). In order to facilitate timely consideration of a petition for deferment of issue, the petition should be filed with the Fee(s) Transmittal form (PTOL-85B) and clearly labeled as a Petition to Defer Issue; Attention: Office of Petitions and filed via (A) the USPTO patent electronic filing system; (B) facsimile transmittal to (571) 273-0025; or (C) hand-delivered to the Office of Petitions, see MPEP § 502, subsection (III)(H). Confirmation of receipt of the petition can be made by calling the Petitions Helpdesk. A petition under 37 CFR 1.314 that is not granted prior to issuance of the patent is not effective to withdraw an application from issue or to defer grant.

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