Q) Express mail (10.02.34p)

by Lizzie on April 28, 2009 · 7 comments

in Exam Concepts,Exam Questions

34. On Monday, May 13, 2002, John’s secretary deposited in an “Express Mail” drop box prior to the last scheduled pick-up for that day, an envelope properly addressed to the USPTO for delivery to the USPTO by the “Express Mail Post Office to Addressee” service. The envelope was received by the USPTO on Wednesday, May 15, 2002, containing a reply to an Office action which set a shortened statutory period (“SSP”) for reply ending on Tuesday, May 14, 2002. The reply was marked by the Office as being received on May 15, 2002. The number of the “Express Mail” mailing label had not been placed on the response papers, and upon receipt of the “Express Mail” mailing label John learned that the “date in” was not clearly marked. John promptly filed a petition requesting the filing date to be the date of deposit. The petition included a showing that the date of deposit accompanied by evidence of USPS corroboration of the deposit. Accordingly,

(A) The reply will be regarded as timely filed in the USPTO on May 15, 2002.

(B) The reply will be regarded as timely filed in the USPTO on May 14, 2002.

(C) The reply will be regarded as timely filed in the USPTO on May 13, 2002.

(D) The reply will be regarded as timely filed in the USPTO if a petition with proper fee for a one month extension of time is filed in the USPTO on or before June 14, 2002.

(E) The reply will be regarded as timely filed in the USPTO if the number of the “Express Mail” mailing label is placed on each page of a copy of the original response and hand carried to the USPTO on May 15, 2002, rather than being sent by “Express Mail.”

34. ANSWER: (D) is correct. 37 C.F.R. § 1.136(a). 37 C.F.R. § 1.136(a) states, “[A]pplicant may extend the time period for reply up to the earlier of the expiration of any maximum period set by statute or five months after the time period set for reply, if a petition for an extension of time and the fee set in § 1.17(a) are filed…” (A) is wrong because the response was not timely filed since it was received by the USPTO after the SSP expired. (B) and (C) are wrong. The reply was not filed on May 14, 2002, because the conditions of 37 C.F.R. § 1.10(b) were not satisfied. For example, the number of the “Express Mail” mailing label must have been placed on each page of the response prior to the original mailing by “Express Mail.” The petition should not be expected to be granted inasmuch as the papers did not include the number of the “Express Mail” mailing label on them. See § 1.10(c)(2), (d)(2), and (e)(2). (E) is wrong because 37 C.F.R. § 1.10(b) requires that “the number of the ‘Express Mail’ mailing label must have been placed on each page of the response prior to the original mailing by ‘Express Mail.’” Emphasis added.

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