MPEP § 509.04(f) — Correcting Errors in Micro Entity Status
Ninth Edition, Revision 01.2024 · last revised R-07.2015
37 CFR 1.29 Micro entity status.
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- (k) If status as a micro entity is established in
good faith in an application or patent, and fees as a micro entity are paid
in good faith in the application or patent, and it is later discovered that
such micro entity status either was established in error, or that the Office
was not notified of a loss of entitlement to micro entity status as required
by paragraph (i) of this section through error, the error will be excused
upon compliance with the separate submission and itemization requirements of
paragraph (k)(1) of this section and the deficiency payment requirement of
paragraph (k)(2) of this section.
- (l) Any paper submitted under this paragraph
must be limited to the deficiency payment (all fees paid in error)
required for a single application or patent. Where more than one
application or patent is involved, separate submissions of deficiency
payments are required for each application or patent (see
§
1.4(b)). The paper must contain an itemization
of the total deficiency payment for the single application or patent
and include the following information:
- (i) Each particular type of fee that was erroneously paid as a micro entity, (e.g., basic statutory filing fee, two-month extension of time fee) along with the current fee amount for a small or nonsmall entity, as applicable;
- (ii) The micro entity fee actually paid, and the date on which it was paid;
- (iii) The deficiency owed amount (for each fee erroneously paid); and
- (iv) The total deficiency payment owed, which is the sum or total of the individual deficiency owed amounts as set forth in paragraph (k)(2) of this section.
- (2) The deficiency owed, resulting from the previous erroneous payment of micro entity fees, must be paid. The deficiency owed for each previous fee erroneously paid as a micro entity is the difference between the current fee amount for a small entity or non-small entity, as applicable, on the date the deficiency is paid in full and the amount of the previous erroneous micro entity fee payment. The total deficiency payment owed is the sum of the individual deficiency owed amounts for each fee amount previously and erroneously paid as a micro entity.
- (3) If the requirements of paragraphs (k)(1) and (2) of this section are not complied with, such failure will either be treated at the option of the Office as an authorization for the Office to process the deficiency payment and charge the processing fee set forth in § 1.17(i), or result in a requirement for compliance within a one-month time period that is not extendable under § 1.136(a) to avoid the return of the fee deficiency payment.
- (4) Any deficiency payment (based on a previous erroneous payment of a micro entity fee) submitted under this paragraph will be treated as a notification of a loss of entitlement to micro entity status under paragraph (i) of this section.
- (l) Any paper submitted under this paragraph
must be limited to the deficiency payment (all fees paid in error)
required for a single application or patent. Where more than one
application or patent is involved, separate submissions of deficiency
payments are required for each application or patent (see
§
1.4(b)). The paper must contain an itemization
of the total deficiency payment for the single application or patent
and include the following information:
37 CFR 1.29(k) contains provisions for a micro entity that correspond to the provisions of 37 CFR 1.28(c) for a small entity. 37 CFR 1.28(c) permits an applicant or patentee to correct the erroneous payment of a patent fee in the small entity amount if status as a small entity was established in good faith, and fees as a small entity were paid in good faith. See DH Tech. Inc. v. Synergystex Int’l Inc., 154 F.3d 1333, 47 USPQ2d 1865 (Fed. Cir. 1998). 37 CFR 1.29(k) provides that if: (i) an applicant or patentee establishes micro entity status in an application or patent in good faith; (ii) the applicant or patentee pays fees as a micro entity in the application or patent in good faith; and (iii) applicant or patentee later discovers that such micro entity status either was established in error, or that the Office was not notified of a loss of entitlement to micro entity status as required by 37 CFR 1.29(i) through error, the error will be excused upon compliance with the separate submission and itemization requirements of 37 CFR 1.29(k)(1) and the deficiency payment requirement of 37 CFR 1.29(k)(2).
37 CFR 1.29(k)(1) provides that any paper submitted under 37 CFR 1.29(k) must be limited to the deficiency payment (all fees paid in error) required for a single application or patent. 37 CFR 1.29(k)(1) provides that where more than one application or patent is involved, separate submissions of deficiency payments (e.g., checks) and itemizations are required for each application or patent. 37 CFR 1.29(k)(1) also provides that the paper must contain an itemization of the total deficiency payment and include the following information: (1) each particular type of fee that was erroneously paid as a micro entity, (e.g., basic statutory filing fee, two-month extension of time fee) along with the current fee amount for a small or non-small entity; (2) the micro entity fee actually paid, and the date on which it was paid; (3) the deficiency owed amount (for each fee erroneously paid); and (4) the total deficiency payment owed, which is the sum or total of the individual deficiency owed amounts as set forth in 37 CFR 1.29(k)(2).
37 CFR 1.29(k)(2) provides that the deficiency owed, resulting from the previous erroneous payment of micro entity fees, must be paid. The deficiency owed for each previous fee erroneously paid as a micro entity is the difference between the current fee amount for a small entity or non-small entity, as applicable, on the date the deficiency is paid in full and the amount of the previous erroneous micro entity fee payment. The total deficiency payment owed is the sum of the individual deficiency owed amounts for each fee amount previously and erroneously paid as a micro entity. This corresponds to the procedure for fee deficiency payments based upon the previous erroneous payment of patent fees in the small entity amount. See 37 CFR 1.28(c)(2)(i) ("[t]he deficiency owed for each previous fee erroneously paid as a small entity is the difference between the current full fee amount (for non-small entity) on the date the deficiency is paid in full and the amount of the previous erroneous (small entity) fee payment").
37 CFR 1.29(k)(3) provides that if the requirements of 37 CFR 1.29(k)(1) and (k)(2) are not complied with, such failure will either be treated at the option of the Office as an authorization for the Office to process the deficiency payment and charge the processing fee set forth in 37 CFR 1.17(i), or result in a requirement for compliance within a one-month nonextendable time period under 37 CFR 1.136(a) to avoid the return of the fee deficiency payment.
37 CFR 1.29(k)(4) provides that any deficiency payment (based on a previous erroneous payment of a micro entity fee) submitted under 37 CFR 1.29(k) will be treated as a notification of a loss of entitlement to micro entity status under 37 CFR 1.29(i).
Cited authority
- 37 CFR 1.4 Nature of correspondence and signature requirements
- 37 CFR 1.17 Patent application and reexamination processing fees
- 37 CFR 1.136 Extensions of time
- 37 CFR 1.29 Micro entity status
- 37 CFR 1.28 Refunds when small entity status is later established; how errors in small entity status are excused
- 509 Payment of Fees