1109.02 Review for Compliance with Minimum Filing Requirements
Statements of use are reviewed by the ITU/Divisional Unit to determine whether they are timely and in compliance with the minimum filing requirements listed in 37 C.F.R. §2.88(c). If the statement of use is untimely, either because it is premature or late, the ITU staff will notify the applicant in writing that the statement of use cannot be considered because it is untimely, and refund the filing fee.
If the statement of use is timely, but does not comply with one or more of the minimum filing requirements of 37 C.F.R. §2.88(c), the ITU staff will notify the applicant in writing of the defect and advise the applicant that the USPTO will not examine the statement of use on the merits unless the applicant corrects the defect before expiration of the deadline for filing a statement of use. 37 C.F.R. §2.88(d).
If the statement of use is filed by someone other than the owner of record, the ITU staff will issue an Office action granting the applicant thirty days in which to submit evidence to establish chain of title. See TMEP §1109.10 for further information regarding ownership issues.
If the applicant does not correct the deficiency before the expiration of the statutory deadline, the application will be abandoned. 37 C.F.R. §2.88(k). In such a case, the USPTO will not refund the filing fee.
The applicant may not withdraw the statement of use and return the application to the previous status of awaiting filing of the statement of use, even if the statement of use fails to meet the minimum filing requirements. 37 C.F.R. §2.88(f); TMEP §1109.17. However, in limited circumstances, an applicant may file an “insurance” extension request with or after the filing of a statement of use, if there is time remaining in the existing six-month period in which the statement of use was filed, to gain more time to comply with the statutory requirements for filing the statement of use. 37 C.F.R. §2.89(e)(1). See TMEP §§1108.03 and 1109.16(c) for further information.