306.05(c) Effect of Certificate of Transmission
As noted in TMEP §306.03, the filing date given to correspondence received by fax transmission is the date that the complete transmission is received by a USPTO fax machine, unless the transmission is completed on a Saturday, Sunday, or Federal holiday within the District of Columbia, in which case the filing date is the next succeeding day that is not a Saturday, Sunday, or Federal holiday within the District of Columbia.
The date of transmission on the certificate is used only to determine whether the correspondence was transmitted to the USPTO within the filing period. Therefore, if the complete transmission is actually received in the USPTO within the filing period, the certificate of transmission is ignored. If the transmission is completed after the expiration of the filing period, the USPTO looks at the correspondence to see if a certificate of transmission was included. If no certificate is found, the correspondence is untimely.
If the correspondence includes a signed certificate of transmission, and the date of transmission on the certificate is within the filing period, the correspondence is considered to be timely.
For example, if a West Coast applicant transmitted correspondence by fax on the last day of the response period, beginning before 9:00 p.m. Pacific Time (midnight Eastern Time) but completed after 9:00 p.m. Pacific Time, the USPTO would give the correspondence a filing date as of the next business day, because that is the date on which the USPTO received the complete transmission. However, if the practitioner affixed a certificate of transmission to the faxed correspondence indicating that the correspondence was being transmitted on the last day of the response period, then the correspondence would be considered timely filed, even though the transmission completed after 9:00 p.m. Pacific Time (midnight Eastern Time) was received in the USPTO the day after the deadline for response.
If the filing period ends on a Saturday, Sunday or Federal holiday within the District of Columbia, the correspondence will be considered to be timely if the date of transmission on the certificate is the next succeeding day that is not a Saturday, Sunday or Federal holiday within the District of Columbia ( see 37 C.F.R. §2.196; TMEP §308).
Whenever it is necessary to change the effective filing date of an application (e.g., when an application filed under §1(b) of the Trademark Act is amended to request registration on the Supplemental rather than the Principal Register after submission of an allegation of use) and the correspondence included a certificate of transmission under 37 C.F.R. §2.197, the date of actual receipt (as stamped or labeled on the relevant correspondence) rather than the date on the certificate is used as the new effective filing date. See TMEP §§206–206.04 as to changes in the effective filing date of an application.