One of the most common questions we receive from practitioners relates to response periods. As a threshold matter, the OED operates under a strict one-year statute of limitations. As such, there is a clear reason for why a staff attorney is often reticent to provide an extension of time to respond to OED’s correspondence. However, the standard response period for most Requests for Information and Evidence is thirty (30) days.
While any Request for Information and Evidence issued on a Monday, Tuesday, or Wednesday is generally going to be without issue, the OED mailing a Request for Information and Evidence on a Thursday or Friday causes the 30th day to fall on a Saturday or Sunday, respectively. So how should a respondent calculate the thirty days—by rounding down or up?
The USPTO finally addressed this dilemma by adding Section 11.4 to Part 11 of the Code of Federal Regulations:
11.4 Computing time.
Computing time. The following rules apply in computing any time period specified in this part where the period is stated in days or a longer unit of time:
(a) Exclude the day of the event that triggers the period;
(b) Count every day, including intermediate Saturdays, Sundays, and legal holidays; and
(c) Include the last day of the period, but if the last day is a Saturday, Sunday, or legal holiday, the period continues to run until the end of the next day that is not a Saturday, Sunday, or legal holiday.
The new rule allows respondents to “round up.” Therefore, for RFI responses that will be due on a Saturday, Sunday, or Holiday, respondents may now submit the response by the end of the next business day. While it may not help situations where the response period has been shortened to seven (7) or twenty-one (21) days, the new rule provides an abundance of clarity to an already stressful process. Of course, in determining whether to accept an extension of time coupled with a tolling agreement, practitioners should consider the benefits of the same for each party to the agreement.