Towfiqu barbhuiya, Unsplash
As we near the end of February, it’s a great time to talk about something that might seem straightforward—USPTO response deadlines—but can actually be a little sneaky. Why? Because February insists on being the shortest month of the year, and that can make things interesting when calculating due dates.
So, let’s say you received an Office Action dated November 30 with a three-month response deadline. Does that mean your response is due on February 28 (since February is playing its usual short-month game), or does it roll over into March?
According to MPEP 710.01(a) and TMEP 310, the response deadline falls on the same numerical day in the third month following issuance. But wait—February 30 does not exist (unless the USPTO knows something we don’t). So what happens?
The answer: The response is due February 28, NOT March 2 (or any imaginary February 30).
This rule was established in Ex parte Messick (Comm’r Pat. 1930), where the USPTO rejected an argument that a three-month deadline should extend to the end of the month. Instead, the Commissioner held that if an Office Action is issued on November 30, the three-month response deadline falls on February 28 (or 29 in a leap year), not March 2. This case solidified the “corresponding day of the month” rule, which is now codified in MPEP 710.01(a).
Important Reminder
- A 30-day period for reply in the USPTO means 30 calendar days, including weekends and federal holidays.
- However, if the period ends on a Saturday, Sunday, or federal holiday, the reply is timely if filed on the next business day.
- If the period for reply is extended, the extra time is added to the original due date, not to the adjusted deadline when a weekend or holiday pushes it forward.
If your USPTO deadline falls in February, double-check your calendar. The last day of February is your deadline—not March 2, not an imaginary February 30. And if you need an extension, file it before February disappears on you!
Patent and Trademark law can be tricky, but at least we don’t have to deal with February’s nonsense every month.
