When is a protest considered timely?
A protest is timely if
- (1) filed prior to the date the application was published under 37 CFR 1.211 or the date a notice of allowance was given or mailed, whichever occurs first, or
- (2) accompanied by written consent of the applicant and filed prior to the date a notice of allowance was given or mailed in the application. Publication under the Patent Cooperation Treaty (PCT) by the World Intellectual Property Organization (WIPO) of an international application would not trigger the end of the 37 CFR 1.291(b) time period for submitting a protest in a national stage application.
The answer to this question can be found in chapter 1900 of the MPEP. This chapter covers Protest.
The answer is from the 9th Edition, Revision 10.2019. Depending on future changes to the MPEP, the question and answer may or may not be applicable in later Editions or revisions.
This question and answer come from section 1901.04 of the MPEP. The following is a brief summary of section 1901.04.
1901.04 When Can the Protest Be Submitted
As a practical matter, any protest should be submitted as soon as possible after the protestor becomes aware of the existence of the application to which the protest is to be directed. By submitting a protest early in the examination process, i.e., before the Office acts on the application if possible, the protestor ensures that the protest will be of the most benefit to the Office in its examination of the application.
- A protest submitted on or after the date a notice of allowance was given or mailed will not be entered and will be discarded.