Patent bar Benefit and priority claims question: unintentional docketing error

Patent barBenefit and priority claims

A provisional application was filed on June 2, 2025. Because of an unintentional docketing error, the nonprovisional application was filed on July 20, 2026. The applicant wants the benefit of the provisional. What is required?

A A petition under 37 CFR 1.137 to revive the provisional application
B Nothing, because a benefit claim to a provisional may be added at any time while the application is pending
C Nothing, because the nonprovisional was filed within 14 months
D A petition under 37 CFR 1.182 showing extraordinary circumstances
E A petition under 37 CFR 1.78(b) stating the delay was unintentional

Show the answer and explanation

Answer: E. A petition under 37 CFR 1.78(b) stating the delay was unintentional

Answer: A petition under 37 CFR 1.78(b) stating the delay was unintentional. If the nonprovisional is filed after the 12-month period but within two months after it ends, the benefit of the provisional may be restored on petition under 1.78(b), which requires the benefit claim, the petition fee and a statement that the delay was unintentional. July 20, 2026 is within 14 months of June 2, 2025 (MPEP 211.01(a)). Why not the others: - Revival under 1.137: the issue is the late nonprovisional, not an abandoned provisional to be revived. - Nothing: restoration is not automatic. - Rule 182: 1.78(b) is the specific procedure; extraordinary circumstances are not required. - Any time during pendency: benefit claims are subject to the 1.78 time limits and restoration rules. Rule: Within two months after the 12-month deadline, a provisional's benefit can be restored on an unintentional-delay petition under 1.78(b). Source: MPEP § 211.01(a) (9th ed., Rev. 01.2024); 35 U.S.C. 119(e)(1); 37 CFR 1.78(b); as at Oct 2026

Common mistake

Assuming the 14-month window is automatic.

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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.