Patent bar Appeals, petitions and revival question: accordance with the USPTO rules and procedures

Patent barAppeals, petitions and revival

A final rejection in Maria Kowalski's utility application was mailed on Thursday, January 8, 2026, setting the usual 3-month shortened statutory period for reply. Nothing was filed until Friday, May 22, 2026, when her practitioner filed a notice of appeal and the notice of appeal fee. Which of the following is in accordance with the USPTO rules and procedures as related in the MPEP?

A The notice of appeal cannot be made timely, because the period for filing a notice of appeal is not extendable under 37 CFR 1.136(a)
B The notice of appeal is timely with no extension, because a notice of appeal may be filed at any time within six months of a final rejection
C The notice of appeal is timely with a one-month extension, because an extension is counted from the date the notice of appeal is filed
D The notice of appeal is timely if a petition and fee for a two-month extension of time under 37 CFR 1.136(a) accompany or precede it
E The notice of appeal is timely only with a three-month extension, because the reply period is counted from the date the action was received

Show the answer and explanation

Answer: D. The notice of appeal is timely if a petition and fee for a two-month extension of time under 37 CFR 1.136(a) accompany or precede it

Answer: The notice of appeal is timely if a petition and fee for a two-month extension of time under 37 CFR 1.136(a) accompany or precede it. The 3-month period ran from January 8 to Wednesday, April 8, 2026. A one-month extension reaches only Friday, May 8; a two-month extension reaches Monday, June 8, 2026, which covers the May 22 filing. A notice of appeal must be filed within the period for reply under 37 CFR 1.134, and that period is extendable under 37 CFR 1.136 (37 CFR 41.31(a)(1), (d); MPEP 1204, subsection II). Why not the others: - No extension: the notice may be filed up to six months after the final rejection only if an extension petition and fee accompany or precede it. - A one-month extension counted from filing: extensions are added to the end of the original period, so one month ends on May 8. - Not extendable: 37 CFR 41.31(d) expressly makes the notice of appeal period extendable under 37 CFR 1.136. - Periods for reply run from the mailing date of the action, and a three-month extension is more than the minimum the facts require. Rule: A notice of appeal is due within the period for reply to the final action and needs a paid 1.136(a) extension if filed after the shortened period. Source: MPEP § 1204 (9th ed., Rev. 01.2024); 35 U.S.C. 134(a); 37 CFR 41.31(a)(1), 41.31(d), 1.136(a); as at Oct 2026

Common mistake

Assuming the six-month statutory maximum makes a late notice of appeal timely without paying for an extension.

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Original study material written from the MPEP; not a question from the current exam.Independent. Not affiliated with or endorsed by the USPTO. Verify figures and rules against current guidance before relying on them.