37 CFR 1.10(e) sets forth procedures for filing a petition to the Director to accord a filing date as of the date of deposit with the USPS, where correspondence deposited as Priority Mail Express® is never received by the Office. Such a petition should:
· (A) be filed promptly after the person becomes aware that the Office has no evidence of receipt of the correspondence;
· (B) include a showing that the number of the Priority Mail Express® mailing label was placed on each piece of correspondence prior to the original mailing;
· (C) include a true copy of the originally deposited correspondence showing the number of the Priority Mail Express® mailing label thereon, a copy of any returned postcard receipt, a copy of the Priority Mail Express® mailing label showing the "date accepted" or other official notation entered by the USPS; and
· (D) include a statement, signed by the person who deposited the documents as Priority Mail Express® with the USPS, setting forth the date and time of deposit, and declaring that the copies of the correspondence, Priority Mail Express® mailing label, and returned postcard receipt accompanying the petition are true copies of the correspondence, mailing label and returned postcard receipt originally mailed or received.
37 CFR 1.10(e) provides for the filing of a petition to accord correspondence a filing date as of the date of deposit with the USPS as Priority Mail Express® only where the correspondence was mailed with sufficient postage and addressed as set out in 37 CFR 1.1(a). There is no corresponding provision that correspondence be properly addressed and mailed with sufficient postage in 37 CFR 1.10(a), (c) and (d), because these sections apply only to correspondence that is actually received by the Office. Correspondence mailed by Priority Mail Express® that is actually received by the Office will not be denied a filing date as of the date of deposit as Priority Mail Express® simply because the correspondence was not mailed with sufficient postage or not addressed as set out in 37 CFR 1.1(a). 37 CFR 1.10(e)(3) provides that if the requested filing date is a date other than the "date accepted" on the Priority Mail Express® mailing label, the petition should include a showing under 37 CFR 1.10(d)(3), as discussed above, that the correspondence was deposited as Priority Mail Express® before the last scheduled pickup on the requested filing date in order to obtain a filing date as of that date. 37 CFR 1.10(e) applies only in those situations in which the correspondence at issue was lost in toto (i.e., the entire correspondence was not delivered to the Office). Where there is a dispute as to the contents of correspondence submitted to the Office (e.g., an applicant asserts that three sheets of drawings were submitted under 37 CFR 1.10 with an application, but the Office records indicate receipt of only two sheets of drawings with the application), an applicant may not rely upon the provisions of 37 CFR 1.10(e) to establish what document(s) and/or fee(s) were filed in the Office with such correspondence. Rather, where the records of the Office (e.g., the file of the application) contain any document(s) or fee(s) corresponding to the contents of the correspondence at issue, the Office will rely upon its official record of the contents of such correspondence in absence of convincing evidence (e.g., a postcard receipt under MPEP § 503 containing specific itemization of the document(s) or fee(s) purported to have been filed with the correspondence at issue) that the Office received and misplaced any document(s) or fee(s) that is not among the official records of the Office.
37 CFR 1.10(f) provides that the Office may require additional evidence to determine whether the correspondence was deposited as Priority Mail Express® with the USPS on the date in question.
37 CFR 1.10(g) provides that any person who mails correspondence addressed as set out in 37 CFR 1.1(a) to the Office with sufficient postage utilizing the Priority Mail Express® Post Office to Addressee service of the USPS, but has the correspondence returned by the USPS due to an interruption or emergency in Priority Mail Express® service, may petition the Director to consider the correspondence as filed on a particular date in the Office. Such a petition must:
· (A) be filed promptly after the person becomes aware of the return of the correspondence;
· (B) include a showing that the number of the Priority Mail Express® mailing label was placed on the paper(s) or fee(s) that constitute the correspondence prior to the original mailing by Priority Mail Express®
· (C) include the original correspondence or a copy of the original correspondence showing the number of the Priority Mail Express® mailing label thereon and a copy of the Priority Mail Express® mailing label showing the "date accepted;" and
· (D) include a statement which establishes, to the satisfaction of the Director, the original deposit of the correspondence and that the correspondence or the copy of the correspondence is the original correspondence or a true copy of the correspondence originally deposited with the USPS on the requested filing date.
The Office may require additional evidence to determine if the correspondence was returned by the USPS due to an interruption or emergency in Priority Mail Express® service. For example, the Office may require a letter from the USPS confirming that the return was due to an interruption or emergency in the Priority Mail Express® service.
This procedure does not apply where the USPS returned the Priority Mail Express® for a reason other than an interruption or emergency in Priority Mail Express® service such as the address was incomplete or the correspondence included insufficient payment for the Priority Mail Express® service.
37 CFR 1.10(h) provides that any person who attempts to mail correspondence addressed as set out in 37 CFR 1.1(a) to the Office with sufficient postage utilizing the Priority Mail Express® Post Office to Addressee service of the USPS, but has the correspondence refused by an employee of the USPS due to an interruption or emergency in Priority Mail Express® service, may petition the Director to consider the correspondence as filed on a particular date in the Office. Such a petition must:
· (A) be filed promptly after the person becomes aware of the refusal of the correspondence;
· (B) include a showing that the number of the Priority Mail Express® mailing label was placed on the paper(s) or fee(s) that constitute the correspondence prior to the attempted mailing by Priority Mail Express®
· (C) include the original correspondence or a copy of the original correspondence showing the number of the Priority Mail Express® mailing label thereon; and
· (D) include a statement by the person who originally attempted to deposit the correspondence with the USPS which establishes, to the satisfaction of the Director, the original attempt to deposit the correspondence and that the correspondence or copy of the correspondence is the original correspondence or a true copy of the correspondence originally attempted to be deposited with the USPS on the requested filing date.
The Office may require additional evidence to determine if the correspondence was refused by an employee of the USPS due to an interruption or emergency in Priority Mail Express® service. For example, the Office may require a letter from the USPS confirming that the refusal was due to an interruption or emergency in the Priority Mail Express® service.
This procedure does not apply where the USPS refused the Priority Mail Express® for a reason other than an interruption or emergency in Priority Mail Express® service such as the address was incomplete or the correspondence included insufficient payment for the Priority Mail Express® service. In addition, this procedure does not apply because an Priority Mail Express® drop box is unavailable or a Post Office facility is closed.
37 CFR 1.10(i) provides that any person attempting to file correspondence by Priority Mail Express® that was unable to be deposited with the USPS due to an interruption or emergency in Priority Mail Express® service which has been so designated by the Director may petition the Director to consider such correspondence as filed on a particular date in the Office. Such a petition must:
· (A) be filed in a manner designated by the Director promptly after the person becomes aware of the designated interruption or emergency in Priority Mail Express® service;
· (B) include the original correspondence or a copy of the original correspondence; and
· (C) include a statement which establishes, to the satisfaction of the Director, that the correspondence would have been deposited with the USPS but for the designated interruption or emergency in Priority Mail Express® service, and that the correspondence or copy of the correspondence is the original correspondence or a true copy of the correspondence originally attempted to be deposited with the USPS on the requested filing date.
This procedure applies only when the Director designates an interruption or emergency in Priority Mail Express® service. In the notice designating the interruption or emergency the Director will provide guidance on the manner in which petitions under 37 CFR 1.10(i) should be filed. The notice will be placed on the USPTO website at www.uspto.gov and published in the Official Gazette.
