U.S. Code » Title 35 » Part PART I— UNITED STATES PATENT AND TRADEMARK OFFICE › Chapter CHAPTER 2— PROCEEDINGS IN THE PATENT AND TRADEMARK OFFICE

35 U.S.C. § 21

Filing date and day for taking action

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(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.(b) When the day, or the last day, for taking any action or paying any fee in the United States Patent and Trademark Office falls on Saturday, Sunday, or a Federal holiday within the District of Columbia, the action may be taken, or the fee paid, on the next succeeding secular or business day.(July 19, 1952, ch. 950, 66 Stat. 794; Pub. L. 93–596, § 1, Jan. 2, 1975, 88 Stat. 1949; Pub. L. 97–247, § 12, Aug. 27, 1982, 96 Stat. 321; Pub. L. 106–113, div. B, § 1000(a)(9) [title IV, § 4732(a)(10)(A)], Nov. 29, 1999, 113 Stat. 1536, 1501A–582; Pub. L. 107–273, div. C, title III, § 13206(b)(1)(B), Nov. 2, 2002, 116 Stat. 1906.)Historical and Revision Notes

Based on Title 35, U.S.C., 1946 ed., § 21 (Mar. 2, 1927, ch. 273, § 14, 44 Stat. 1337).

“Fixed by statute” is omitted from the corresponding section of the existing statute as unnecessary. Saturday is added as a day on which action need not be taken.

Editorial NotesAmendments

2002—Subsec. (a). Pub. L. 107–273 made technical correction to directory language of Pub. L. 106–113. See 1999 Amendment note below.

1999—Subsec. (a). Pub. L. 106–113, as amended by Pub. L. 107–273, substituted “Director” for “Commissioner” in two places.

1982—Pub. L. 97–247 substituted “Filing date and day for taking action” for “Day for taking action falling on Saturday, Sunday, or holiday” as section catchline, added subsec. (a), redesignated existing provisions as subsec. (b) and inserted “Federal” after “Sunday, or a”.

1975—Pub. L. 93–596 substituted “Patent and Trademark Office” for “Patent Office”.

Statutory Notes and Related SubsidiariesEffective Date of 1999 Amendment

Amendment by Pub. L. 106–113 effective 4 months after Nov. 29, 1999, see section 1000(a)(9) [title IV, § 4731] of Pub. L. 106–113, set out as a note under section 1 of this title.

Effective Date of 1982 Amendment

Amendment by Pub. L. 97–247 effective six months after Aug. 27, 1982, see section 17(c) of Pub. L. 97–247, set out as an Effective Date note under section 294 of this title.

Effective Date of 1975 Amendment

Amendment by Pub. L. 93–596 effective Jan. 2, 1975, see section 4 of Pub. L. 93–596, set out as a note under section 1111 of Title 15, Commerce and Trade.

Emergency Relief From Postal Situation Affecting Patent Cases

Relief as to filing date of patent application or patent and excusal of delayed fees or actions affected by postal situation beginning on Mar. 18, 1970, and ending on or about Mar. 30, 1970, see note set out under section 111 of this title.

Notes of Decisions
Cited in 12 cases (2 in the last 5 years), 1943–2025 · leading case: Aqua Prods., Inc. v. Matal, 872 F.3d 1290 (Fed. Cir. 2017).
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Aqua Prods., Inc. v. Matal, 872 F.3d 1290 (Fed. Cir. 2017). · cites it 2× “, 35 U.S.C. § 21 (“The Director may by rule pre- scribe .”
Avocent Huntsville Corp. v. Clearcube Tech., Inc., 443 F. Supp. 2d 1284 (N.D. Ala. 2006). · cites it 12× “The other motions that arguably relate to the inequitable conduct analysis are the following: (3) That aspect of Avocent’s motion for partial summary judgment seeking a declaration that the ’442 application was filed on January 4, 1994, in accordance with 35 U.S.C. § 21 and 37…”
Orion Ip, LLC v. Mercedes-Benz USA, LLC, 485 F. Supp. 2d 745 (E.D. Tex. 2007). · cites it 8× “In Olah, the Patent Office Board of Appeals interpreted 35 U.S.C. § 21 , which read: 1 When the day, or the last day, for taking any action or paying any fee in the United States Patent Office falls on Saturday, Sunday, or a holiday within the District of Columbia, the action…”
Arqule, Inc. v. Kappos, 793 F. Supp. 2d 214 (D.D.C. 2011). · cites it 3× “The only issue in dispute here is whether the calculation of applicant delay in § 154(b) (2) (C) (ii) is subject to the “weekend/holiday exception” in 35 U.S.C. § 21 (b). Section 21(b) allows applicants to take any action or pay any fee on the next business day if the deadline…”
Xactware Solutions, Inc. v. Buildxact Software Ltd., 95 F.4th 810 (4th Cir. 2024). “Proceedings in the PTO are governed by 35 U.S.C. §§ 21–28. Relevant here are Sections 23 and 24.”
O'shannessy v. Doll, 566 F. Supp. 2d 486 (E.D. Va. 2008). · cites it 4× “See 35 U.S.C. § 21 (a) (1982), amended by 35 U.”
Actelion Pharm. Ltd. v. Lee, 216 F. Supp. 3d 680 (E.D. Va. 2016). “An applicant who submits all necessary paperwork fees at the date of expiration, where that date of expiration falls on a weekend or federal holiday, can hardly object that the national stage would not commence until the PTO reviews the paperwork and credits the fees, all of…”
Ferd. Mulhens, Inc. v. Higgins, 55 F. Supp. 42 (S.D.N.Y. 1943). “§ 54 , and the Act relating to suits against the United States Patent Office, 35 U.S.C.A. § 21 , it is to be presumed that Congress intended no such extension, that absent such intention, where the suit is in effect against the United States, the section quoted must receive a…”
Ferwerda v. Coakwell, 121 F. Supp. 334 (N.D. Ohio 1953). “” Rule 7 is in effect a restatement of Section 21 of Public Law 593, 35 U.S.C. § 21 , which reads: “§ 21. Day for taking action falling on Saturday, Sunday, or holiday “When the day, or the last day, for taking any action or paying any fee in the United States Patent Office…”
Arqule, Inc. v. Kappos, No. 2010-1904 (D.D.C. June 22, 2011). · cites it 2× “35 U.S.C. § 21 (b). As both litigants concede, the weekend/holiday exception in § 21(b) applies to several actions applicants can take under the patent laws, including the timeliness of an applicant’s response to a PTO request.”
Guymon v. Vidal, No. 1:23-cv-01302 (E.D. Va. Jan. 10, 2025). “§ 21 (a) which provides that “[t]he Director [of the USPTO] 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.”
Ferwerda v. Bendix Aviation Corp., 136 F. Supp. 620 (D.N.J. 1955). “, 35 U.S.C.A. § 21 , and, consistent therewith, is applicable only to proceedings in the Patent Office.”
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