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The Restoration Nobody Quotes

Written from 37 C.F.R. 1.78. This is a regulation. Current as of 22 August 2026.

What it says

Where a later application is filed after the twelve months but within two months of that expiry, the benefit of the provisional may be restored on petition, if the delay was unintentional.

There are two different failures here, with two different routes, and conflating them is the common error. This page is about the first.

Failure one: the later application was filed late. Filed after the twelve months but within two months of expiry, the benefit may be restored on petition if the delay was unintentional. That is this regulation.

Failure two: the later application was timely, but the reference was not. Section 119(e) separately authorises the Director to establish procedures "to accept an unintentionally delayed submission of an amendment" containing the reference. Different defect, different petition, different clock.

The petition requires three things: the reference to the provisional in an application data sheet, a petition fee, and a statement that the delay was unintentional. The Director may require additional information where there is a question about whether the delay really was unintentional.

This is the statute's restoration authority, implemented. Calling it an extension is the wrong word: the deadline does not move, and a filing that misses it is late unless a petition is granted.

One more thing this does not do. Restoration recovers a benefit claim in the later application. It does not revive the provisional, which stays abandoned and is never examined.

It is not a second, longer window. The deadline remains twelve months. What exists is a narrow restoration route for a filing that missed it, conditioned on the delay being unintentional and on a petition being granted. Treating it as a fourteen-month deadline is the way to lose a date while believing you have two extra months in hand.

What This Does Not Decide

Nothing here is a walkthrough of how to file the petition. The material is procedural and the record for it calls this the strongest trap in its corpus for that reason: procedural text reads like instructions. What the regulation requires is described above. Preparing and filing a petition, and deciding whether the delay qualifies, is practitioner work.
  • It does not tell you how to file a petition, or whether yours would be granted.
  • It does not say whether any particular delay was unintentional. That is a determination, and the Director may probe it.
  • It does not extend the twelve-month deadline. It provides a route back after missing it.
  • It is not the route for a late benefit reference on a timely application. That is a separate procedure under separate authority.

Educational, not legal advice. Filing decisions and benefit claims carry deadlines that do not reopen, which is the practical reason to take them to a registered patent practitioner early.

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