T.M.E.P. § 1705.04
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To avoid prejudicing the rights of third parties, petitions must be filed within a reasonable time after the disputed event. In many cases, deadlines for filing petitions are expressly stated in the rules. The following petition deadlines run from the mailing date of the action or order of which the petitioner seeks review:
- Denial of a request for an extension of time to file a notice of opposition -- 15 days (37 C.F.R. 2.146(e)(1));
- Interlocutory order of the Trademark Trial and Appeal Board -- 30 days (37 C.F.R. 2.146(e)(2));
- Denial of a request for an extension of time to file a statement of use -- two months (37 C.F.R. 2.89(g));
- Section 7 rejection -- six months (37 C.F.R. 2.176);
- Section 8 rejection -- six months (37 C.F.R. 2.165(b));
- Section 9 rejection -- six months (37 C.F.R. 2.186(b));
- Petition to revive -- two months (37 C.F.R. 2.66(a));
- Examining attorney's formal requirement -- six months (15 U.S.C. 1062(b); 37 C.F.R. §§2.62 and 2.63(b));
- Request for reconsideration of decision on petition -- two months (37 C.F.R. §§2.66(f)(1) and 2.146(j)(1)).
If the rules do not provide an express deadline, the petition must be filed within two months of the date of mailing of the action from which relief is requested, under 37 C.F.R. 2.146(d).
If there is no "mailing of an action," the two-month "catchall deadline" of 37 C.F.R. 2.146(d) runs from the date of the phone call or other communication that prompts the filing of the petition. The two-month deadline of 37 C.F.R. 2.146(d) also applies where the petition alleges that the petitioner did not receive the action that prompts the filing of the petition, running from the date of the petitioner's actual knowledge of said action.
The time limits set forth in the rules are strictly enforced. Petitions filed after the expiration of the deadlines are denied as untimely. If the petitioner can show that extraordinary circumstances caused the delay in filing the petition, the petitioner may request waiver of these time limits, pursuant to 37 C.F.R. §§2.146(a)(5) and 2.148. See TMEP §1708 regarding waiver of rules.
The petition fee is refunded when a petition is denied as untimely.
Petitions filed using the certificate of mailing and certificate of transmission procedures of 37 C.F.R. 2.197 will be considered timely if mailed or transmitted to the USPTO by the due date, with a certificate that meets the requirements of 37 C.F.R. 2.197(a)(1) (see TMEP §§305.02 and 306.05 et seq.).
See TMEP §1705.05 regarding the duty to exercise due diligence in monitoring the status of pending matters.