USPTO extensions of time: fees, limits and how to ask

USPTO extension of time fees for 2026

Amounts from 37 CFR 1.17(a) and the USPTO fee schedule in force since January 19, 2025. Fee codes are large / small / micro entity. The last column assumes the usual 3-month shortened statutory period.

The fees are cumulative. If you paid for one month and then need a second, you pay the two-month fee less what you already paid ( MPEP 710.02(e) ). Extensions are bought in whole months; fees are not prorated (MPEP 706.07(f)). Provisional applications have their own, lower extension fees under 37 CFR 1.17(u) and their own form, PTO/AIA/22p. For every other USPTO fee, see USPTO patent fees ; for who qualifies for the reduced rates, see small entity vs micro entity .

How a 1.136(a) extension works

35 U.S.C. 133 gives an applicant 6 months to reply to an Office action, or a shorter time of at least 30 days set by the Director. In practice the action sets a shortened statutory period, usually 3 months, or 2 months for a restriction requirement . 37 CFR 1.136(a)(1) lets you extend that period by up to 5 months or to the statutory maximum, whichever comes first, by filing a petition and the fee. Four rules decide how it plays out:

• The filing date sets the fee. The date you file the petition and fee decides how many months you need and what they cost; the fee you pay decides when the extended period ends (37 CFR 1.136(a)(2)).
• Months run from the date of the action. The extended due date is the same day of the month as the Office action date, so an action dated January 31 with a 3-month period is due April 30, and with one month's extension May 31 ( MPEP 710.01(a) ).
• Weekends do not shift the base date. If a due date falls on a Saturday, Sunday or federal holiday, you may file on the next business day (37 CFR 1.7(a)). But an extension is added to the original calendar date, not to that next business day (MPEP 710.01(a)).
• The reply must still be filed in time. The petition can be filed before, with or without the reply, but if no reply is on file when the extended period ends, the application is abandoned (37 CFR 1.136(a)(2), 1.135(a)).

Because the 6-month limit counts from the action, the fourth and fifth months are usable only where the period set was shorter than 3 months, or where the period is not tied to a statutory maximum at all. For periods that are not, 1.136(a) allows the full 5 months.

Worked example: a 3-month period

A non-final rejection is mailed on Tuesday, March 10, 2026 with a 3-month shortened statutory period.

• Reply by June 10: no fee.
• Reply by July 10: one-month extension, $235 ($94 small, $47 micro).
• Reply by August 10: two-month extension, $690 ($276 / $138).
• Reply by September 10: three-month extension, $1,590 ( $636 / $318). This is the 6-month statutory limit.
• Nothing filed by September 10: the application is abandoned as of September 11 ( MPEP 711.04(a) ).

How to request an extension

The extension takes effect when the petition and fee are filed, without any action by the USPTO ( MPEP 710.02(e) ). You have three ways to make the petition:

1. The USPTO form. PTO/AIA/22, "Petition for Extension of Time under 37 CFR 1.136(a)", lists the five fee levels for each entity size. The USPTO's forms page lists PTO/SB/22 for applications filed before September 16, 2012.
2. A sentence in the reply. MPEP 710.02(e) says a proper petition "may be only a few sentences", for example: "The applicant herewith petitions the Director of the United States Patent and Trademark Office to extend the time for reply to the Office action dated ____ for ____ month(s) from ____ to ____."
3. A constructive petition under 1.136(a)(3). If you forget the petition, the USPTO treats the reply as including one when the file holds a written request to treat future replies that way, or an authorization to charge all required fees, fees under 1.17 or extension fees, or when the 1.17(a) fee is paid with the reply.

The constructive petition is a safety net, not a plan. The USPTO "strongly recommends" an express petition to avoid processing delays. Where a deposit account authorization is on file and you ask for too few months, the USPTO treats the petition as asking for the number of months actually needed (MPEP 710.02(e)). Two more traps from the same section: a reply filed late with a petition but no fee is not timely until the fee arrives, and a petition filed in a continuing application does not extend the time in the parent. If you need the extension only to keep the parent pending while you file a continuation , file the petition in the parent.

When 1.136(a) is not available

Paid extensions are possible "in reply to most Office actions" (MPEP 710.02(e)), but not these:

The appeal brief, by contrast, can be extended: it is due 2 months after the notice of appeal (37 CFR 41.37(a)), and MPEP 710.02(e) uses a late appeal brief as its example of a 1.136(a) extension. See the PTAB ex parte appeal guide for each appeal deadline, and notice of allowance and issue fee for the non-extendable issue fee period.

Extensions for cause under 1.136(b)

Where 1.136(a) is not available, a period can be extended "only for sufficient cause and for a reasonable time specified" ( 37 CFR 1.136(b)). The differences from 1.136(a):

• The request must be filed on or before the day the reply is due, not afterwards.
• It must give a reason and pay the 37 CFR 1.17(g) petition fee: $235 ( $94 small, $47 micro), fee codes 1463 / 2463 / 3463.
• Filing it extends nothing. The Technology Center Director decides, and the extension exists only if granted (MPEP 710.02(e)).
• It cannot be used when 1.136(a) is available (1.136(a)(2)), and like 1.136(a) it can never pass the statutory maximum.

The USPTO form is PTO/SB/23. Neither 1.136(a) nor (b) can extend the oath, drawings or deposit periods set after a Notice of Allowability (37 CFR 1.136(c)).

Extensions after a final rejection

A final rejection also sets 3 months, but the start date for extension fees can move. If your first reply is filed within 2 months and the examiner mails the advisory action after the 3-month date, the period ends on the advisory action's mailing date and extension fees are calculated from that date ( MPEP 706.07(f), 710.02(e)). Either way, the reply cannot go past 6 months from the final rejection.

Example: a final rejection mailed March 10, 2026, a reply filed May 5 and an advisory action mailed June 25. An RCE filed on July 20 needs only a one-month extension, because it is within a month of June 25. Had the first reply gone in more than 2 months after the final rejection, extension fees would run from June 10 and the same filing would need two months. The final rejection guide covers the choice between an after-final amendment, an RCE and an appeal.

The hidden cost: patent term adjustment

Under 37 CFR 1.704(b) , any time beyond 3 months taken to reply to an Office action counts as applicant delay. Patent term adjustment is reduced by every day from the day after the 3-month date to the day the reply is filed. The rule adds that the period set in the action "has no effect" on that 3-month count. So on top of the fee, a three-month extension can cost up to 3 months of any adjustment the patent would otherwise get. See how long a patent lasts for how the adjustment is calculated.

Missed the deadline: abandonment and revival

If no complete reply is filed by the end of the period, as extended, the application is abandoned ( 37 CFR 1.135(a)). Abandonment happens by operation of law, on the day after the period ended, whether or not a Notice of Abandonment has been mailed (MPEP 711.03(c), 711.04(a)). An after-final amendment that the examiner does not enter does not save the application (1.135(b)).

An abandoned application can be revived by a petition under 37 CFR 1.137(a) if the delay was unintentional. The petition needs:

• the reply that was due. Where prosecution was closed, for example by a final rejection, an RCE can serve, and a continuing application can serve where a nonprovisional application was abandoned for failure to prosecute (1.137(c));
• the petition fee under 37 CFR 1.17(m);
• a statement that the entire delay, from the due date to the filing of a grantable petition, was unintentional; and
• a terminal disclaimer, but only for design applications and for utility or plant applications filed before June 8, 1995 (1.137(d)).

The USPTO form is PTO/SB/64. Move fast: the USPTO generally does not question the delay when the petition is filed within 3 months of first learning of the abandonment and within 1 year of the abandonment date ( MPEP 711.03(c) ). For petitions filed after August 13, 2026, it requires an additional explanation of the circumstances of the delay when the petition comes more than one year after abandonment, down from two years before ( 91 FR 37827 ). The same petition revives an application abandoned for an unpaid issue fee, and a similar petition under 37 CFR 1.378 reinstates a patent that expired for an unpaid maintenance fee .

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