[Code of Federal Regulations]
[Title 37, Volume 1]
[Revised as of July 1, 2002]
From the U.S. Government Printing Office via GPO Access
[CITE: 37CFR1.28]

[Page 35-36]
 
              TITLE 37--PATENTS, TRADEMARKS, AND COPYRIGHTS
 
                         DEPARTMENT OF COMMERCE
 
PART 1--RULES OF PRACTICE IN PATENT CASES--Table of Contents
 
                      Subpart A--General Provisions
 
Sec. 1.28  Refunds when small entity status is later established; how errors in small entity status are excused.

    (a) Refunds based on later establishment of small entity status. A 
refund pursuant to Sec. 1.26, 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 an assertion under 
Sec. 1.27(c) and a request for a refund of the excess amount are filed 
within three months of the date of the timely payment of the full fee. 
The three-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 three months of 
the date of payment of, the full fee.
    (b) Date of payment. (1) The three-month period for requesting a 
refund, pursuant to paragraph (a) of this section, starts on the date 
that a full fee has been paid;

[[Page 36]]

    (2) The date when a deficiency payment is paid in full determines 
the amount of deficiency that is due, pursuant to paragraph (c) of this 
section.
    (c) How errors in small entity status are excused. 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 loss of 
entitlement to small entity status as required by Sec. 1.27(g)(2), the 
error will be excused upon: compliance with the separate submission and 
itemization requirements of paragraphs (c)(1) and (c)(2) of this 
section, and the deficiency payment requirement of paragraph (c)(2) of 
this section:
    (1) Separate submission required for each application or patent. Any 
paper submitted under this paragraph must be limited to the deficiency 
payment (all fees paid in error), required by paragraph (c)(2) of this 
section, for one application or one patent. Where more than one 
application or patent is involved, separate submissions of deficiency 
payments (e.g., checks) and itemizations are required for each 
application or patent. See Sec. 1.4(b).
    (2) Payment of deficiency owed. The deficiency owed, resulting from 
the previous erroneous payment of small entity fees, must be paid.
    (i) Calculation of the deficiency owed. The deficiency owed for each 
previous fee erroneously paid as a small entity is the difference 
between the current fee amount (for other than a small entity) on the 
date the deficiency is paid in full and the amount of the previous 
erroneous (small entity) fee payment. The total deficiency payment owed 
is the sum of the individual deficiency owed amounts for each fee amount 
previously erroneously paid as a small entity. Where a fee paid in error 
as a small entity was subject to a fee decrease between the time the fee 
was paid in error and the time the deficiency is paid in full, the 
deficiency owed is equal to the amount (previously) paid in error;
    (ii) Itemization of the deficiency payment. An itemization of the 
total deficiency payment is required. The itemization must include the 
following information:
    (A) Each particular type of fee that was erroneously paid as a small 
entity, (e.g., basic statutory filing fee, two-month extension of time 
fee) along with the current fee amount for a non-small entity;
    (B) The small entity fee actually paid, and when. This will permit 
the Office to differentiate, for example, between two one-month 
extension of time fees erroneously paid as a small entity but on 
different dates;
    (C) The deficiency owed amount (for each fee erroneously paid); and
    (D) The total deficiency payment owed, which is the sum or total of 
the individual deficiency owed amounts set forth in paragraph 
(c)(2)(ii)(C) of this section.
    (3) Failure to comply with requirements. If the requirements of 
paragraphs (c)(1) and (c)(2) of this section are not complied with, such 
failure will either: be treated as an authorization for the Office to 
process the deficiency payment and charge the processing fee set forth 
in Sec. 1.17(i), or result in a requirement for compliance within a one-
month non-extendable time period under Sec. 1.136(a) to avoid the return 
of the fee deficiency paper, at the option of the Office.
    (d) Payment of deficiency operates as notification of loss of 
status. Any deficiency payment (based on a previous erroneous payment of 
a small entity fee) submitted under paragraph (c) of this section will 
be treated under Sec. 1.27(g)(2) as a notification of a loss of 
entitlement to small entity status.

[65 FR 54661, Sept. 8, 2000]