What is the continuation surcharge?
The USPTO name is the continuing application fee (CAF). It was set by the fiscal year 2025 fee rule (FR Doc. 2024-26821, 89 FR 91898) and applies from Jan 19, 2025. The fee is in 37 CFR 1.17(w).
It is tied to the benefit claim. What is measured is the actual filing date of the nonprovisional application that presents the claim. The fee is due with the benefit claim, so normally at filing (CAF Guide Q3).
| Filed after the earliest benefit date | Large | Small | Micro |
|---|---|---|---|
| More than 6, up to 9 years · 1.17(w)(1) · 1055 / 2055 / 3055 | $2,700 | $1,080 | $540 |
| More than 9 years · 1.17(w)(2) · 1056 / 2056 / 3056 | $4,000 | $1,600 | $800 |
The amounts have not changed since Jan 19, 2025. No eCFR version of 1.17 through Aug 13, 2026 changes them (eCFR version history), and the fee schedule last revised Aug 14, 2026 shows the same figures.
How do you find the earliest benefit date?
The earliest benefit date is “the earliest filing date for which benefit is claimed under 35 U.S.C. 120, 121, 365(c), or 386(c), and 37 CFR 1.78(d).” It is set application by application. For utility and plant applications it is the same date the 20-year term runs from (CAF Guide Q4).
- Counts: US nonprovisional parents claimed under §120 or §121. A PCT application claimed under §365(c), and through it any US nonprovisional the PCT claims (Example 7). A Hague design application under §386(c) (Example 8).
- Does not count: a provisional claimed under §119(e) (Q4, Example 2), and foreign priority under §119(a) or §365(b) (Q4, Examples 4–5).
- Edge case: a benefit claim to a provisional made under §120 does count. The USPTO advises against making one (Example 3).
A common mistake: “earliest priority date”
Illustration: a small family
This is a hypothetical family, made up to show the rule. It is not a real application.
| Filing | Filed | Counts? |
|---|---|---|
| Provisional (claimed under §119(e)) | Jun 12, 2020 | No |
| Parent nonprovisional | Jun 11, 2021 | Yes: sets the earliest benefit date |
| First continuation (§120), still pending | Feb 20, 2024 | Inherits Jun 11, 2021 |
| New continuation from the pending one | Not yet filed | Inherits Jun 11, 2021 |
The new continuation is free through Friday, Jun 11, 2027. From Jun 12, 2027 a large entity owes $2,700, and from Jun 12, 2030 it owes $4,000. Counting from the provisional would put the six-year line a year early, in June 2026.
How do you count six and nine years?
The rule charges filings “more than six years” and “more than nine years” after the earliest benefit date (37 CFR 1.17(w)). Count to the same month and day.
- Filing on the 6-year anniversary is exactly six years, so no fee is due.
- The fee starts the day after the anniversary.
- At nine years, the anniversary itself still owes only the 6-year amount. The higher amount starts the next day.
The CAF Guide confirms this indirectly: it treats the next business day after a weekend anniversary as free, which only works if the anniversary itself is free (Q14–15).
The filing date is the Eastern Time receipt date that Patent Center gives, even on a weekend or holiday (37 CFR 1.6(a)(4), quoted in MPEP 502.05). Plan by the Eastern Time date, not your local time.
Feb 29: the USPTO has not said how it counts six years from Feb 29 in a year without one. Feb 28 is the conservative reading, with the fee starting Mar 1. The USPTO might use Mar 1 instead. Our calculator uses Feb 28.
What if the anniversary falls on a weekend or holiday?
If the 6-year anniversary falls on a Saturday, Sunday or Federal holiday within the District of Columbia, a continuation filed on the next business day owes no fee. At nine years, the next business day owes only the 6-year amount (CAF Guide Q14–15; 35 U.S.C. 21(b); 37 CFR 1.7(a)).
Example: an earliest benefit date of May 29, 2021 has its 6-year anniversary on Saturday, May 29, 2027. Monday, May 31, 2027 is Memorial Day. The last free day is Tuesday, Jun 1, 2027.
DC Emancipation Day (Apr 16) is a DC holiday but not a Federal holiday under 5 U.S.C. 6103. Whether it counts under 37 CFR 1.7 is unclear. We don’t treat it as a holiday. If an anniversary lands on or near it, file earlier rather than rely on it.
What do you pay if both thresholds are passed?
The tiers do not stack. The 9-year amount is the total, “less any amount previously paid under paragraph (w)(1)” (37 CFR 1.17(w)(2); CAF Guide Q12–13, Example 10).
- Nothing paid yet: $4,000 large, $1,600 small, $800 micro.
- 6-year fee already paid in the same application: $1,300 large ($4,000 − $2,700), $520 small, $260 micro.
The most any one application owes is the 9-year amount.
Which filings does it apply to?
- All utility, plant and design continuations, divisionals and CIPs. Divisionals get no exemption (Q1).
- 371 national stages, if the PCT application claims a US nonprovisional under §120 or §365(c). The “actual filing date” is then the international filing date (Q7, Example 6).
- Continuing reissues. Non-continuing reissues get a partial waiver (Q8, Example 19).
Transition rule. A benefit claim properly presented before Jan 19, 2025 never triggers the fee. But if any new benefit claim is presented in that application on or after Jan 19, 2025, the fee is due when the timing thresholds are met, even if the new claim leaves the earliest benefit date unchanged (Q6, Examples 12–13).
What happens if the fee is not paid?
The benefit claim is not entered, and the application does not get the earlier date. There is no surcharge-and-continue path. The filing receipt shows which benefit claims were entered, so check it (CAF Guide Q10–11, Examples 16–17).
A benefit claim added after filing owes the fee when it is presented. A delayed claim under 37 CFR 1.78(e) needs the fee plus the petition fee under 1.17(m) (Q3; 37 CFR 1.78(d)(3)(i), (e)(2)).
Worked examples
Each example opens in the calculator with the dates filled in.