[Code of Federal Regulations]
[Title 37, Volume 1]
[Revised as of July 1, 1999]
From the U.S. Government Printing Office via GPO Access
[CITE: 37CFR1.28]

[Page 28-29]
 
             TITLE 37--PATENTS, TRADEMARKS, AND COPYRIGHTS
 
    CHAPTER I--PATENT AND TRADEMARK OFFICE, DEPARTMENT OF COMMERCE
 
PART 1--RULES OF PRACTICE IN PATENT CASES--Table of Contents
 
                      Subpart A--General Provisions
 
Sec. 1.28  Effect on fees of failure to establish status, or change status, as a small entity.

    (a)(1) The failure to establish status as a small entity 
(Secs. 1.9(f) and 1.27 of this part) in any application or patent prior 
to paying, or at the time of paying, any fee precludes payment of the 
fee in the amount established for small entities. A refund pursuant to 
Sec. 1.26 of this part, based on establishment of small entity status, 
of a portion of fees timely paid in full prior to establishing status as 
a small entity may only be obtained if a statement under Sec. 1.27 and a 
request for a refund of the excess amount are filed within two months of 
the date of the timely payment of the full fee. The two-month time 
period is not extendable under Sec. 1.136. Status as a small entity is 
waived for any fee by the failure to establish the status prior to 
paying, at the time of paying, or within two months of the date of 
payment of, the fee.
    (2) Status as a small entity must be specifically established in 
each application or patent in which the status is available and desired. 
Status as a small entity in one application or patent does not affect 
any other application or patent, including applications or patents which 
are directly or indirectly dependent upon the application or patent in 
which the status has been established. The refiling of an application 
under Sec. 1.53 as a continuation, division,

[[Page 29]]

or continuation-in-part (including a continued prosecution application 
under Sec. 1.53(d)), or the filing of a reissue application requires a 
new determination as to continued entitlement to small entity status for 
the continuing or reissue application. A nonprovisional application 
claiming benefit under 35 U.S.C. 119(e), 120, 121, or 365(c) of a prior 
application, or a reissue application may rely on a statement filed in 
the prior application or in the patent if the nonprovisional application 
or the reissue application includes a reference to the statement in the 
prior application or in the patent or includes a copy of the statement 
in the prior application or in the patent and status as a small entity 
is still proper and desired. The payment of the small entity basic 
statutory filing fee will be treated as such a reference for purposes of 
this section.
    (3) Once status as a small entity has been established in an 
application or patent, the status remains in that application or patent 
without the filing of a further statement pursuant to Sec. 1.27 of this 
part unless the Office is notified of a change in status.
    (b) Once status as a small entity has been established in an 
application or patent, fees as a small entity may thereafter be paid in 
that application or patent without regard to a change in status until 
the issue fee is due or any maintenance fee is due. Notification of any 
change in status resulting in loss of entitlement to small entity status 
must be filed in the application or patent prior to paying, or at the 
time of paying, the earliest of the issue fee or any maintenance fee due 
after the date on which status as a small entity is no longer 
appropriate pursuant to Sec. 1.9 of this part. The notification of 
change in status may be signed by the applicant, any person authorized 
to sign on behalf of the assignee, or an attorney or agent of record or 
acting in a representative capacity pursuant to Sec. 1.34(a) of this 
part.
    (c) If status as a small entity is established in good faith, and 
fees as a small entity are paid in good faith, in any application or 
patent, and it is later discovered that such status as a small entity 
was established in error or that through error the Office was not 
notified of a change in status as required by paragraph (b) of this 
section, the error will be excused upon payment of the deficiency 
between the amount paid and the amount due. The deficiency is based on 
the amount of the fee, for other than a small entity, in effect at the 
time the deficiency is paid in full.
    (d)(1) Any attempt to fraudulently (i) establish status as a small 
entity or (ii) pay fees as a small entity shall be considered as a fraud 
practiced or attempted on the Office.
    (2) Improperly and with intent to deceive
    (i) Establishing status as a small entity, or
    (ii) Paying fees as a small entity shall be considered as a fraud 
practiced or attempted on the Office.

(35 U.S.C. 6, Pub. L. 97-247; 15 U.S.C. 1113, 1123)

[47 FR 40140, Sept. 10, 1982, as amended at 49 FR 553, Jan. 4, 1984; 57 
FR 2033, Jan. 17, 1992; 58 FR 54509, Oct. 22, 1993; 60 FR 20222, Apr. 
25, 1995; 62 FR 53183, Oct. 10, 1997]