Key Takeaways

  • A patent extension of time allows applicants to extend deadlines to respond to USPTO Office actions, usually up to six months.
  • Fees increase with each additional month requested, and deadlines that fall on weekends or holidays move to the next business day.
  • Not all deadlines are extendable (e.g., filing a U.S. national stage application under the PCT or statutory filing periods).
  • Courts and administrative bodies evaluate good faith, promptness, and proportionality when considering extension requests.
  • Extensions should be requested early, with clear justification, since “last-minute” requests face stricter scrutiny.
  • Clear records and timely communication with the USPTO reduce the risk of abandonment and costly petitions to revive.

A patent extension of time request is a common occurrence during the prosecution of a patent application because of the complexity and cost for filing a patent.

If you have filed a patent application and received an Office action from a patent examiner, you usually are given a time period to submit a reply to the examiner’s noted deficiencies in your application. If you are unable to prepare a response over that time, you may often file for an extension to file a response (and pay applicable fees) that may not exceed six months after the mailing date on the Office action.

However, there are instances when it is not possible to file for an extension of time. These are:

  • Filing a
  • Filing a US national stage application under the

When to File a Patent Extension of Time Request

If you receive an Office action from a patent examiner with the U.S. Patent and Trademark Office (USPTO), it means that you have received a notification in writing from the examiner that one or more deficiencies have been found in your patent application. In most cases, you have three months to respond to the Office action without having to pay any extension fees.

If you need more time to prepare your response, you can receive an additional three months by submitting a request for extension. There are important factors to be taken into consideration regarding filing extension requests:

  • You don’t have to file an extension request if you are able to respond to the patent examiner within the initial three-month response period.
  • If you need more time, file your extension request and pay the fee for filing an extension request at the same time you file your response to the Office action.
  • You must designate the number of months you have required beyond the initial three months in your extension request.
  • If the extension deadline (which is six months from the mailing date of the Office action) falls on a weekend, the next business day is considered the deadline date.
  • The fees for filing an extension request increase with each month that is requested in the extension request. For instance, your fee for a one-month extension request is $50 if you are a , $100 if you are a , and $200 if you are a large entity. A two-month extension will cost you $150, $300, and $600 respectively, and a three-month extension will cost you $350, $700, and $1400, respectively.
  • If the deadline to file a response to an Office action is less than three months from the mailing date of the action, you will still have up to six months to file your response. So if for instance, you are only given one month to respond, you have five additional months over which you can file an extension. Of course, the fees for filing in the fourth and fifth month increase. The fees for a four-month extension are $550 (micro entity), $1,100 (small entity), and $2,200 (large entity), and for a five-month extension are $750, $1500, and $3,000, respectively.

Deadlines That Cannot Be Extended

While many USPTO deadlines allow for an extension of time, certain statutory deadlines are non-extendable. Examples include:

  • Filing a U.S. national stage application under the Patent Cooperation Treaty (PCT).
  • Payment of the issue fee after a Notice of Allowance.
  • Filing an appeal to the U.S. Court of Appeals for the Federal Circuit.
  • Priority claims under the Paris Convention (the 12-month window to claim priority).

Missing these deadlines typically results in abandonment or loss of rights. Unlike discretionary deadlines tied to Office actions, these periods are set by statute and cannot be extended by paying a fee. Applicants must plan carefully to avoid forfeiture of their patent rights.

How to File a Patent Extension Request

The technical term for filing an extension request with the USPTO is “petitioning” for a patent application extension. However, a formal petition is seldom required because the USPTO deems the payment of the extension fees as a constructive petition for a patent extension.

The period for filing a response to an Office action starts with the mailing date on the Office action. If a response is not submitted before the response due date, the application is technically considered abandoned. However, extensions of time are authorized within a period of six months after the mailing date if the required fees are paid when the response is filed or, in some cases, an actual petition for an extension is filed. There is no fee to file the petition, but the extension fees must be paid at the time the actual past-due response is filed.

Responses to Office actions may be filed in the following manner:

  • Electronically on the USPTO website (only for registered E-filers)
  • US mail
  • Facsimile
  • Hand-delivery

You should do your best to file within the allotted time indicated on the Office action in order to avoid paying additional fees for what can already be an expensive application process.

Factors Considered in Granting Extensions

Although the USPTO generally grants extensions automatically upon payment of the fee, some contexts—especially petitions to revive or cases in litigation—require a deeper review. Factors considered may include:

  • Reason for delay – whether the applicant exercised reasonable diligence.
  • Impact on the proceedings – balancing fairness to other parties, such as competitors.
  • Timing of the request – last-minute filings are often viewed less favorably unless exceptional circumstances justify them.
  • Proportionality – whether the extension sought is proportionate to the complexity of the response required.

These considerations reflect broader legal principles drawn from litigation and construction law: parties seeking extra time must demonstrate fairness, necessity, and good faith in their request.

Best Practices for Managing Extension Requests

To minimize risk and costs when seeking an extension of time in patent matters, applicants should:

  • Request extensions early rather than waiting until the last moment.
  • Keep detailed records of correspondence, drafts, and reasons for delay.
  • Communicate proactively with the USPTO or counsel to avoid misunderstandings.
  • Budget for fees, as costs escalate each additional month.
  • Avoid reliance on extensions where statutory deadlines apply, since no relief is available once these periods lapse.

By adopting these practices, applicants reduce the risk of abandonment and avoid expensive petitions to reinstate their application.

Frequently Asked Questions

  1. What is a patent extension of time?
    It is a formal request to the USPTO to extend the deadline to respond to an Office action, usually up to six months.
  2. Are all patent deadlines extendable?
    No. Statutory deadlines, like filing a national stage application or paying the issue fee, cannot be extended.
  3. How much does it cost to file an extension of time?
    Fees increase each month and vary by entity size. Micro, small, and large entities pay different rates.
  4. What happens if I miss a non-extendable deadline?
    You generally lose rights in the application or patent. Limited remedies, such as petitions to revive, may apply in cases of unintentional delay.
  5. Should I always file for an extension?
    Only when necessary. Extensions increase costs and may delay your patent grant, so they should be used strategically.

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