1712.02(b)(ii) Standard of Review
The unintentional delay standard of 37 C.F.R. §2.66 does not apply to registered marks. TMEP §1714.01(f)(ii)(D). Under 37 C.F.R. §§2.146(a)(5) and 2.148, the Director may waive any provision of the rules that is not a provision of the statute, only when an extraordinary situation exists, justice requires, and no other party is injured. See TMEP §1708 for further discussion of conditions for waiver of rules. The failure to receive an Office action is considered an extraordinary situation that justifies a waiver of a rule. Therefore, if the registrant did not receive an Office action refusing to accept an affidavit or renewal application, but the registrant does not have proof that non-receipt was due to USPTO error ( see TMEP §1712.02(a), paragraph 9), the registrant may file a formal petition under 37 C.F.R. §2.146. The petition should include a clear statement that the Office action was not received and either a complete response to the Office action, to expedite acceptance of the maintenance filing, or a request that the Office action be reissued.
If the petition does not include a clear statement that the Office action was not received and either a complete response or request to reissue the Office action, the USPTO will notify the petitioner that this information is required, and grant the petitioner 30 days to submit the information. If the petitioner does not submit this information within the time allowed, the petition will be denied because the petitioner did not meet the requirements for filing a petition and the registration will remain cancelled. See 37 C.F.R. §2.146(c).