513 Deposit as Priority Mail Express® with
U.S. Postal Service [R-07.2015]

“EXPRESS MAIL” RENAMED PRIORITY MAIL
EXPRESS®

“EXPRESS MAIL” RENAMED PRIORITY MAIL EXPRESS

Effective July 28, 2013, the United States Postal Service
(USPS) changed the name of “Express Mail” to Priority Mail
Express®. All characteristics of the Priority Mail
Express® service are the same as those of the former
“Express Mail” service (although the mailing labels differ).

35 U.S.C. 21  
Filing date and day for taking action.

• (a) The Director may by rule prescribe that any paper or fee required
  to be filed in the Patent and Trademark Office will be considered filed in the
  Office on the date on which it was deposited with the United States Postal Service
  or would have been deposited with the United States Postal Service but for postal
  service interruptions or emergencies designated by the Director.

*****

37 CFR 1.6  Receipt of correspondence.

• (a) Date of receipt and Priority Mail Express®
  date of deposit. Correspondence received in the Patent and Trademark
  Office is stamped with the date of receipt except as follows:
  • (1) The Patent and Trademark Office is not open for the filing
    of correspondence on any day that is a Saturday, Sunday, or Federal holiday
    within the District of Columbia. Except for correspondence transmitted by
    facsimile under paragraph (a)(3) of this section, or filed electronically
    under paragraph (a)(4) of this section, no correspondence is received in the
    Office on Saturdays, Sundays, or Federal holidays within the District of
    Columbia.
  • (2) Correspondence filed in accordance with § 1.10
    will be stamped with the date of deposit as Priority Mail
    Express® with the United States Postal
    Service.
  • (3) Correspondence transmitted by facsimile to the Patent and
    Trademark Office will be stamped with the date on which the complete
    transmission is received in the Patent and Trademark Office unless that date
    is a Saturday, Sunday, or Federal holiday within the District of Columbia,
    in which case the date stamped will be the next succeeding day which is not
    a Saturday, Sunday, or Federal holiday within the District of Columbia.
  • (4) Correspondence may be submitted using the Office electronic
    filing system only in accordance with the Office electronic filing system
    requirements. Correspondence submitted to the Office by way of the Office
    electronic filing system will be accorded a receipt date, which is the date
    the correspondence is received at the correspondence address for the Office
    set forth in § 1.1 when it was
    officially submitted.

*****

37 CFR 1.10  Filing of correspondence by Priority Mail
Express®.

• (a)
  • (1) Any correspondence received by the U.S. Patent and Trademark
    Office (USPTO) that was delivered by the Priority Mail
    Express® Post Office to Addressee service of
    the United States Postal Service (USPS) will be considered filed with the
    USPTO on the date of deposit with the USPS.
  • (2) The date of deposit with USPS is shown by the “date
    accepted” on the Priority Mail Express® label or
    other official USPS notation. If the USPS deposit date cannot be determined,
    the correspondence will be accorded the USPTO receipt date as the filing
    date. See § 1.6(a).
• (b) Correspondence should be deposited directly with an employee of
  the USPS to ensure that the person depositing the correspondence receives a
  legible copy of the Priority Mail Express® mailing
  label with the “date accepted” clearly marked. Persons dealing indirectly with the
  employees of the USPS (such as by deposit in a Priority Mail
  Express® drop box) do so at the risk of not
  receiving a copy of the Priority Mail Express® mailing
  label with the desired “date accepted” clearly marked. The paper(s) or fee(s) that
  constitute the correspondence should also include the Priority Mail
  Express® mailing label number thereon. See
  paragraphs (c), (d) and (e) of this section.
• (c) Any person filing correspondence under this section that was
  received by the Office and delivered by the Priority Mail
  Express® Post Office to Addressee service of the
  USPS, who can show that there is a discrepancy between the filing date accorded by
  the Office to the correspondence and the date of deposit as shown by the “date
  accepted” on the Priority Mail Express® mailing label
  or other official USPS notation, may petition the Director to accord the
  correspondence a filing date as of the “date accepted” on the Priority Mail
  Express® mailing label or other official USPS
  notation, provided that:
  • (1) The petition is filed promptly after the person becomes
    aware that the Office has accorded, or will accord, a filing date other than
    the USPS deposit date;
  • (2) 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®; and
  • (3) The petition includes a true copy of the Priority Mail
    Express® mailing label showing the “date
    accepted,” and of any other official notation by the USPS relied upon to
    show the date of deposit.
• (d) Any person filing correspondence under this section that was
  received by the Office and delivered by the Priority Mail
  Express® Post Office to Addressee service of the
  USPS, who can show that the “date accepted” on the Priority Mail
  Express® mailing label or other official notation
  entered by the USPS was incorrectly entered or omitted by the USPS, may petition
  the Director to accord the correspondence a filing date as of the date the
  correspondence is shown to have been deposited with the USPS, provided that:
  • (1) The petition is filed promptly after the person becomes
    aware that the Office has accorded, or will accord, a filing date based upon
    an incorrect entry by the USPS;
  • (2) 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®; and
  • (3) The petition includes a showing which establishes, to the
    satisfaction of the Director, that the requested filing date was the date
    the correspondence was deposited in the Priority Mail
    Express® Post Office to Addressee service
    prior to the last scheduled pickup for that day. Any showing pursuant to
    this paragraph must be corroborated by evidence from the USPS or that came
    into being after deposit and within one business day of the deposit of the
    correspondence in the Priority Mail Express® Post
    Office to Addressee service of the USPS.
• (e) Any person mailing correspondence addressed as set out in
  § 1.1(a) to the Office with sufficient postage utilizing
  the Priority Mail Express® Post Office to Addressee
  service of the USPS but not received by the Office, may petition the Director to
  consider such correspondence filed in the Office on the USPS deposit date,
  provided that:
  • (1) The petition is filed promptly after the person becomes
    aware that the Office has no evidence of receipt of the correspondence;
  • (2) 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®;
  • (3) The petition includes a copy of the originally deposited
    paper(s) or fee(s) that constitute the 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,” a copy of any other official notation by the USPS relied upon to
    show the date of deposit, and, if the requested filing date is a date other
    than the “date accepted” on the Priority Mail
    Express® mailing label or other official
    notation entered by the USPS, a showing pursuant to paragraph (d)(3) of this
    section that the requested filing date was the date the correspondence was
    deposited in the Priority Mail Express® Post
    Office to Addressee service prior to the last scheduled pickup for that day;
    and
  • (4) The petition includes a statement which establishes, to the
    satisfaction of the Director, the original deposit of the correspondence and
    that the copies of the correspondence, the copy of the Priority Mail
    Express® mailing label, the copy of any
    returned postcard receipt, and any official notation entered by the USPS are
    true copies of the originally mailed correspondence, original Priority Mail
    Express® mailing label, returned postcard
    receipt, and official notation entered by the USPS.
• (f) The Office may require additional evidence to determine if the
  correspondence was deposited as Priority Mail Express®
  with the USPS on the date in question.
• (g) Any person who mails correspondence addressed as set out in
  § 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 such correspondence as filed on a
  particular date in the Office, provided that:
  • (1) The petition is filed promptly after the person becomes
    aware of the return of the correspondence;
  • (2) 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®;
  • (3) The petition includes 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
  • (4) The petition includes a statement which establishes, to the
    satisfaction of the Director, the original deposit of the correspondence and
    that the correspondence or 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.
• (h) Any person who attempts to mail correspondence addressed as set
  out in § 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 such correspondence as filed on a particular date in the Office, provided
  that:
  • (1) The petition is filed promptly after the person becomes
    aware of the refusal of the correspondence;
  • (2) 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®;
  • (3) The petition includes the original correspondence or a copy
    of the original correspondence showing the number of the Priority Mail
    Express® mailing label thereon; and
  • (4) The petition includes 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.
• (i) Any person attempting to file correspondence under this sect ion
  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, provided that:
  • (1) The petition is 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;
  • (2) The petition includes the original correspondence or a copy
    of the original correspondence; and
  • (3) The petition includes 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.

The statutory authority for the granting of a filing date based on the date
of deposit for correspondence sent by Priority Mail Express® and
received by the Office is found in section 21(a) of Title 35 of the United
States Code.

The specific rule for obtaining a filing date as of the date of deposit in
Priority Mail Express® (rather than the date of receipt at the
Office) is 37 CFR
1.10.

35 U.S.C.
21(a) is limited to correspondence deposited with the United States
Postal Service (USPS). The procedure in 37 CFR 1.10 is limited to
correspondence deposited in the Priority Mail Express® Post
Office to Addressee service of the USPS. There are no similar provisions and no similar
benefit can be obtained for correspondence deposited in International Express Mail.

Effective July 28, 2013, the USPS changed the name of Express
Mail®. In addition, the USPS updated the Priority Mail
Express® mailing label. The mailing label now has a ‘‘date
accepted’’ field rather than a ‘‘date-in’’ field, which was previously used on the Express
Mail® label.

I. EFFECTIVE DATE, WEEKENDS & HOLIDAYS

37 CFR
1.6(a)(2) provides that correspondence deposited as Priority Mail
Express® in accordance with 37 CFR 1.10 will
be stamped, and, therefore, considered as filed on the date of its deposit, regardless
of whether that date is a Saturday, Sunday or federal holiday within the District of
Columbia. 37 CFR
1.10 provides a procedure for assigning the date on which any
paper or fee is deposited as Priority Mail Express® with the
USPS as the filing date of the paper or fee in the U.S. Patent and Trademark Office
(Office). The date of deposit with the USPS is shown by the “date accepted” on the
Priority Mail Express® mailing label or other official USPS
notation. This holds true for any day that the correspondence may be accepted as
Priority Mail Express® by the USPS, even when the paper or
fee is deposited and accepted on a Saturday, Sunday or federal holiday within the
District of Columbia. For example, if a person files a patent application by Priority
Mail Express® with the USPS on a Saturday in compliance with
37 CFR
1.10, he or she will receive the benefit of the Saturday date,
even though the Office is closed on Saturdays and, therefore, the person could not have
filed the application by depositing it directly at the Office on that Saturday. See
37 CFR
1.6(a)(1). In those cases where the procedure of 37 CFR 1.10(a) has
not been properly followed, e.g., the “date accepted” is illegible, the filing date of
the correspondence will be the date of actual receipt in the Office. An applicant may
file a petition under the conditions specified in 37 CFR 1.10(c), (d) or
(e) (discussed below) presenting whatever arguments and evidence
that the paper or fee is entitled to a filing date other than the filing date accorded
by the Office.

II. DATE ACCEPTED, DIRECT DEPOSIT, PRIORITY MAIL EXPRESS®
BOX RECEPTACLES & LOG BOOKS

The procedure in 37 CFR 1.10(a) requires the use of
the Priority Mail Express® Post Office to Addressee service
of the USPS. This service provides for the use of a mailing label on which the USPS
clearly indicates the date on which it was deposited. Correspondence sent by the
Priority Mail Express® Post Office to Addressee service is
considered filed in the Office on the “date accepted” entered by the USPS. The “date
accepted” on the Priority Mail Express® mailing label must be
completed by the USPS, not by the applicant. For correspondence filed in accordance with
37 CFR
1.10, Office personnel will routinely look to the Priority Mail
Express® mailing label, and stamp the “date accepted” or
other official USPS notation as the filing date of the correspondence. Accordingly, if
the USPS enters the deposit date as its “date accepted,” the correspondence will receive
the deposit date as its filing date. If the USPS deposit date cannot be determined, the
correspondence will be accorded the date of receipt in the Office as the filing date. An
applicant may file a petition under the conditions specified in 37 CFR 1.10(c),
(d), (e), (g),
(h), or (i) (discussed below) presenting
whatever arguments and evidence that the paper or fee is entitled to a filing date other
than the filing date accorded by the Office.

37 CFR
1.10(b) further provides that correspondence should be deposited
directly with an employee of the USPS to ensure that the person depositing the
correspondence receives a legible copy of the Priority Mail
Express® mailing label with the “date accepted” clearly
marked, and that persons dealing indirectly with the employees of the USPS (such as by
depositing correspondence in a Priority Mail Express® drop
box) do so at the risk of not receiving a copy of the Priority Mail
Express® mailing label with the desired “date accepted”
clearly marked. On petition, the failure to obtain a Priority Mail
Express® receipt with the “date accepted” clearly marked
may be considered an omission that could have been avoided by the exercise of due care,
as discussed below. While the Office strongly urges direct deposit of Priority Mail
Express® correspondence in order to obtain a legible copy
of the Priority Mail Express® mailing label, parties are not
precluded from using Priority Mail Express® drop boxes, but
do so at their own risk.

A paper or fee placed in a Priority Mail
Express® box receptacle after the box has been cleared for
the last time on a given day will be considered to be deposited as of the date of
receipt (“date accepted”) indicated on the Priority Mail
Express® mailing label by the Postal Service Priority Mail
Express® acceptance clerk. 37 CFR 1.10(d)
permits the Office to correct a USPS “date-in” error when the correspondence is
deposited in an Priority Mail Express® drop box prior to last
scheduled pick up of the day, that is, the time clearly marked on the Priority Mail
Express® drop box indicating when the box will be cleared
for the last time on the date of deposit. 37 CFR 1.10(d) sets forth the
procedures to be followed to be entitled to such a correction.

Parties who do use drop boxes can protect themselves from uncertainty
due to illegible mailing labels by routinely maintaining a log of Priority Mail
Express® deposits in which notations are entered by the
person who deposited the correspondence as Priority Mail
Express® within one business day after deposit with the
USPS. Such evidence could be useful to later support a petition filed under
37 CFR
1.10(c), (d), (e), or (g). Evidence that came into being
after deposit and within one day after the deposit of the
correspondence as Priority Mail Express® may be in the form
of a log book which contains information such as the Priority Mail
Express® number; the application number, attorney docket
number or other such file identification number; the place, date and time of deposit;
the time of the last scheduled pick-up for that date and place of deposit; the
depositor’s initials or signature; and the date and time of entry in the log.

III. PRIORITY MAIL EXPRESS® MAILING LABEL NUMBER

While 37 CFR 1.10(b) does not require placement of the Priority Mail
Express® mailing label number on the correspondence prior
to mailing, it is advisable to do so. If the number of the mailing label did not appear
on the correspondence as originally filed, relief will not be granted on petition under
37 CFR
1.10(c), (d), (e),
(g), or (h), even if the party who filed the
correspondence satisfies the other requirements of 37 CFR 1.10(c), 1.10(d),
1.10(e), 1.10(g), or 1.10(h). To be
effective, the number must be placed on each separate paper and each fee transmittal
either directly on the document or by a separate paper firmly and securely attached
thereto. In situations wherein the correspondence includes several papers directed to
the same application (for example, the specification, drawings, and declaration for a
new application), the correspondence may be submitted with a cover or transmittal letter
which should itemize the papers. It is not necessary that the number be placed on each
page of a particular paper or fee transmittal. Merely placing the number in one
prominent location on each separate paper or fee transmittal (or cover sheet or
transmittal letter which should itemize the separate papers and fees) will be
sufficient.

Since the filing of correspondence under 37 CFR 1.10
without the number of the Priority Mail Express® mailing
label thereon is an oversight that can be avoided by the exercise of reasonable care,
requests for waiver of this requirement will not be granted on petition. A party’s
inadvertent failure to comply with the requirements of a rule is not deemed to be an
extraordinary situation that would warrant waiver of a rule under 37 CFR 1.183,
2.146(a)(5) or 2.148. See Honigsbaum v. Lehman, 903 F. Supp. 8, 37
USPQ2d 1799 (D.D.C. 1995) (Commissioner did not abuse his discretion in refusing to
waive requirements of 37 CFR 1.10(c) in order to grant filing date to patent
application, where applicant failed to produce “Express Mail” customer receipt or any
other evidence that application was actually deposited with USPS as “Express Mail.”),
aff’d without opinion, 95 F.3d 1166 (Fed. Cir. 1996);
Gustafson v. Strange, 227 USPQ 174 (Comm’r Pat. 1985) (counsel’s
unawareness of 37 CFR
1.8 not extraordinary situation warranting waiver of a rule);
In re Chicago Historical Antique Automobile Museum, Inc., 197 USPQ
289 (Comm’r Pat. 1978) (since certificate of mailing procedure under 37 CFR 1.8 was
available to petitioner, lateness due to mail delay not deemed to be extraordinary
situation).

IV. PETITIONS

37 CFR
1.10(c) through 1.10(e) and 1.10(g) set forth
procedures for petitioning the Director to accord a filing date as of the date of
deposit as Priority Mail Express® (Priority Mail Express).
Briefly, 37 CFR
1.10(c) applies where there is a discrepancy between the filing
date accorded by the Office and the “date accepted” entered by the USPS on the Priority
Mail Express® mailing label or other official USPS notation;
37 CFR
1.10(d) applies where the “date accepted” is incorrectly entered
by the USPS; 37 CFR
1.10(e) applies where correspondence deposited with the USPS as
Priority Mail Express® is not received by the Office; and
37 CFR
1.10(g) applies where correspondence deposited with the USPS as

“Express Mail”

was returned by
the USPS due to an interruption or emergency in Priority Mail
Express® service.

37 CFR
1.10(h) and 1.10(i) set forth procedures for
petitioning the Director when correspondence was attempted to be deposited as Priority
Mail Express®. 37 CFR 1.10(h) applies where
correspondence was refused by an employee of the USPS due to an interruption or
emergency in Priority Mail Express® service; and
37 CFR
1.10(i) applies where correspondence 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.

V. PETITION TO CORRECT FILING DATE AND DATE ACCEPTED DISCREPANCY

37 CFR
1.10(c) sets forth procedures for filing a petition to the
Director for a filing date as of the date of deposit with the USPS, where there is a
discrepancy between the filing date initially accorded by the Office and the “date
accepted” entered by the USPS or other official USPS notation. Such a petition should:

• (A) be filed promptly after the person becomes aware that the Office
  has accorded, or will accord, a filing date other than the USPS deposit date;
• (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; and
• (C) include a true copy of the Priority Mail
  Express® mailing label showing the “date accepted”
  or other official notation by the USPS.

VI. PETITION TO CORRECT INCORRECTLY ENTERED DATE-IN

37 CFR
1.10(d) sets forth procedures for filing a petition to the
Director to accord a filing date as of the actual date of deposit with the USPS, where
the “date accepted” or other official notation is incorrectly entered by the USPS. Such
a petition should:

• (A) be filed promptly after the person becomes aware that the Office
  has accorded, or will accord, a filing date based upon an incorrect entry by the
  USPS;
• (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; and
• (C) include a showing that the correspondence was deposited as
  Priority Mail Express® prior to the last scheduled
  pickup on the requested filing date.

The showing under 37 CFR 1.10(d) must be corroborated
by (1) evidence from the USPS, or (2) evidence that came into being after deposit and
within one business day of the deposit of the correspondence as Priority Mail
Express®. Evidence from the USPS may be the Priority Mail
Express® Corporate Account Mailing Statement. Evidence
that came into being within one day after the deposit of the correspondence as Priority
Mail Express® may be in the form of a log book which contains
information such as the Priority Mail Express® number; the
application number, attorney docket number or other such file identification number; the
place, date and time of deposit; the time of the last scheduled pick-up for that date
and place of deposit; the depositor’s initials or signature; and the date and time of
entry in the log.

The reason the Office considers correspondence to have been filed as of
the date of deposit as Priority Mail Express® is that this
date has been verified by a disinterested USPS employee, through the insertion of a
“date accepted,” or other official USPS notation, on the Priority Mail
Express® mailing label. Due to the questionable
reliability of evidence from a party other than the USPS that did not come into being
contemporaneously with the deposit of the correspondence with the USPS,
37 CFR
1.10(d) specifically requires that any petition under
37 CFR
1.10(d) be corroborated either by evidence from the USPS, or by
evidence that came into being after deposit and within one
business day after the deposit of the correspondence as Priority Mail
Express®.

A petition alleging that the USPS erred in entering the “date accepted”
will be denied if it is supported only by evidence (other than from the USPS) which was:

• (A) created prior to the deposit of the correspondence as Priority
  Mail Express® with the USPS (e.g., an application
  transmittal cover letter, or a client letter prepared prior to the deposit of the
  correspondence); or
• (B) created more than one business day after the deposit of the
  correspondence as Priority Mail Express® (e.g., an
  affidavit or declaration prepared more than one business day after the
  correspondence was deposited with the USPS as Priority Mail
  Express®).

On the other hand, a notation in a log book, entered
after deposit by the person who deposited the correspondence
as Priority Mail Express® within one business day of such
deposit, setting forth the items indicated above, would be deemed on petition to be an
adequate showing of the date of deposit under 37 CFR 1.10(d)(3).

37 CFR
1.10(d)(3) further provides that a party must show that
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.

VII. PETITION FOR CORRESPONDENCE NEVER RECEIVED

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.

VIII. ADDITIONAL EVIDENCE MAY BE REQUIRED

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.

IX. PETITION FOR CORRESPONDENCE RETURNED DUE TO POSTAL INTERRUPTION OR
EMERGENCY

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.

X. PETITION FOR CORRESPONDENCE REFUSED DUE TO POSTAL INTERRUPTION OR
EMERGENCY

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.

XI. PETITION FOR CORRESPONDENCE UNABLE TO BE DEPOSITED DUE TO A DIRECTOR-DESIGNATED
POSTAL INTERRUPTION OR EMERGENCY

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.

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