When is the deadline to file a continuation?

Section 120 requires the continuation to be filed “before the patenting or abandonment of or termination of proceedings on” the parent (35 U.S.C. 120). In practice the parent must still be pending: not yet patented, not abandoned, and not otherwise terminated.

The issue day is the edge case, and it is settled. The MPEP says a later application is copending “if [it] is filed on the same date, or before the date that the patent issues” (MPEP 211.01(b)). In Immersion Corp. v. HTC Corp., 826 F.3d 1357 (Fed. Cir. 2016), the court reversed a ruling that a same-day continuation lost its priority. So the last day is the issue date, inclusive.

The filing date is the Patent Center receipt date in Eastern Time (37 CFR 1.6(a)(4), quoted in MPEP 502.05). Plan for Eastern Time, wherever you are.

Two limits on which application can be the parent:

• It must be a nonprovisional, or a PCT or Hague application designating the US. A provisional can never be the parent of a continuation (MPEP 211.01(a)–(b)).
• The chain must be unbroken. Each intermediate application must have been copending with its own parent. A gap anywhere breaks benefit for everything below it (MPEP 211.01(b), subsection II).

No. The issue date closes it. But the MPEP warns that “patents issue shortly after the payment of the issue fee” and calls filing the continuation before you pay the issue fee “best practice” (MPEP 211.01(b), 1306.03).

How shortly? The current MPEP gives no number, so expect a few weeks. The date becomes certain only when the Issue Notification appears in Patent Center. Since May 13, 2025, the USPTO says the time from Issue Notification to issue date is about two weeks, down from about three (USPTO, Apr 15, 2025). That is less time to decide on an optional continuation once the fee is paid.

If no reply is filed, the application is abandoned “after midnight of the date on which the set shortened statutory period, including any extensions under 37 CFR 1.136, expired” (MPEP 711.04(a)). The recorded date of abandonment is the day after the period ends.

• A continuation filed on the last day of the period, as extended, is copending.
• If the period ends on a weekend or Federal holiday, it rolls to the next business day first.
• The statutory maximum is 6 months.
• In months 4 to 6 the extension of time must actually be obtained in the parent. Without it, abandonment dates back to the end of the shortened period (MPEP 711.02(a)).

Before the issue fee is paid, you can file the continuation or file an RCE. No petition is needed for an RCE at this stage (MPEP 1308).

After the issue fee is paid, the application can be withdrawn from issue only by a petition under 37 CFR 1.313(c), on one of three grounds:

1. unpatentability of a claim;
2. consideration of an RCE;
3. express abandonment in favor of a continuing application.

The petition must be received and granted before the issue date. The petition fee under 37 CFR 1.17(h) is $150 (large entity), $60 (small) or $30 (micro) (fee schedule).

QPIDS lets an IDS be considered after the issue fee is paid without a processed RCE. It is filed with a 1.313(c)(2) petition and an RCE that is processed only if the examiner finds a reference requires reopening prosecution (USPTO QPIDS page). It is a route for references, not a way to extend the window.

For a step-by-step guide to these last three months, see filing a continuation after the notice of allowance.

Once the parent has issued, it can no longer be the parent of a new continuation. An abandoned application is different: a petition to revive under 37 CFR 1.137 lists providing copendency with a later application as one of its purposes. For abandonment for failure to reply, the continuing application itself can serve as the required reply (MPEP 711.03(c)).

Revival needs the 37 CFR 1.17(m) fee ($2,260 large entity, or $3,000 if filed more than one year late since Aug 13, 2026) and a statement that the delay was unintentional. Whether revival fits a given family is a question for your registered patent practitioner. We mention it here as information only.

Demo dates, not a real application. The gap from payment to issue is illustrative; real gaps vary.

Had the applicant not paid the issue fee, the last day would have been the due date, Mar 1, 2027, and the parent would then lapse. A continuation filed on Feb 2, 2027 may be able to claim the benefit of the parent; one filed the next day cannot.

Timing also affects cost. A continuation filed more than 6 years after the earliest benefit date owes a $2,700 surcharge (large entity), and $4,000 after 9 years. See how the continuation surcharge is counted.