Maintenance fee where the patent was not correctly identified

[from MyPatentBar]

Q) Maintenance Fee Paid / Check Returned

One question deals with a maintenance fee that was paid, but the patent was not identified correctly

with the payment, so the USPTO mailed the check back. Answer options refer to 37 CFR 1.377.

Review of decision refusing to accept and record payment of a maintenance fee filed prior to expiration

of patent and 37 CFR 1.378. Acceptance of delayed payment of maintenance fee in expired patent

to reinstate patent.

I chose the answer option based on 37 CFR 1.5.

Identification of patent, patent application, or patent-related proceeding that covers mail returned

by the USPTO for not identifying an application (not sure if correct) [Edit: see MPEP 2580].

Any correspondence not containing such identification will be returned to the sender where a return address

is available. The returned correspondence will be accompanied with a cover letter which will indicate to the

sender that if the returned correspondence is resubmitted to the Patent and Trademark Office within two weeks

of the mail date on the cover letter, the original date of receipt of the correspondence will be considered

by the Patent and Trademark Office as the date of receipt of the correspondence.

§ 1.377 Review of decision refusing to accept and record payment of a maintenance fee filed prior to expiration

of patent. (a) Any patentee who is dissatisfied with the refusal of the Patent and Trademark Office to accept

and record a maintenance fee which was filed prior to the expiration of the patent may petition the Director to

accept and record the maintenance fee. (b) Any petition under this section must be filed within two months of

the action complained of, or within such other time as may be set in the action complained of, and must be

accompanied by the fee set forth in § 1.17(g). The petition may include a request that the petition fee be

refunded if the refusal to accept and record the maintenance fee is determined to result from an error by the

Patent and Trademark Office. (c) Any petition filed under this section must comply with the requirements of

§ 1.181(b) and must be signed by an attorney or agent registered to practice before the Patent and Trademark

Office, or by the patentee, the assignee, or other party in interest.

MPEP 2580: “This petition [under §1.377] may be used, for example, in situations where an error is present

in the identifying data required by 37 CFR 1.366(c) with the maintenance fee payment, i.e., either the patent

number or the application number * >is< incorrect.” However, “A petition under 37 CFR 1.377 would not be

appropriate where the patentee paid a maintenance fee on one patent when the patentee intended to pay the

maintenance fee on a different patent but through error identified the wrong patent number and application number.”

- Maintenance fee incorrectly applied to the wrong patent.

I chose answer related to who can sign.... inventor, assignee or person responsible for making payment

- Maintenance fee - fee can be returned when no application number is provided

- MPEP 2580, 2500-13, What happens when a maintenance fee is not applied to the patent.

When can 1.377 be invoked. Basically, have to have attempted to put the right application number

in (or identifier) and paid both the maintenance fees and surcharges due.