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Continuation surcharge: $2,700 after six years, $4,000 after nine

Updated Oct 23, 2026

Short answer

The USPTO charges a continuing application fee when a continuation, divisional or CIP is filed more than six years after its earliest benefit date: $2,700 for a large entity, $1,080 small, $540 micro. Past nine years the fee is $4,000, $1,600 or $800 in total, not on top. The clock runs from the earliest US nonprovisional, PCT or Hague filing date claimed, not from a provisional or foreign priority date.

Source: 37 CFR 1.17(w), USPTO CAF Quick Reference Guide. In effect since Jan 19, 2025.

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).

Continuing application fee, 37 CFR 1.17(w), effective Jan 19, 2025
Filed after the earliest benefit dateLargeSmallMicro
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”

Some published guidance says the fee runs from the earliest priority date, or counts the priority date claimed by a PCT application. Neither matches the rule. A provisional or foreign priority claim never sets the earliest benefit date. Counting from one makes the fee look due earlier than it is.

Illustration: a small family

This is a hypothetical family, made up to show the rule. It is not a real application.

Illustration only: which filings set the earliest benefit date
FilingFiledCounts?
Provisional (claimed under §119(e))Jun 12, 2020No
Parent nonprovisionalJun 11, 2021Yes: sets the earliest benefit date
First continuation (§120), still pendingFeb 20, 2024Inherits Jun 11, 2021
New continuation from the pending oneNot yet filedInherits 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.

  1. Earliest benefit date Mar 2, 2020, large entity, filed Jul 1, 2026$2,700

    The last free day was Mar 2, 2026 (a Monday). The filing falls in the six-to-nine-year tier, fee code 1055.

    Open in the calculator →
  2. Earliest benefit date Mar 2, 2020, large entity, filed Jul 5, 2029$1,300

    Past nine years, with the $2,700 already paid in the same application: $4,000 less $2,700.

    Open in the calculator →
  3. Earliest benefit date Feb 2, 2021, large entity, filed Jul 1, 2026$0

    Under six years. Filing stays free through Feb 2, 2027.

    Open in the calculator →
  4. Earliest benefit date May 29, 2021, small entity, filed Jun 1, 2027$0

    The anniversary is Saturday, May 29, 2027, and Monday, May 31, 2027 is Memorial Day. Tuesday, Jun 1 is the next business day, so it is still free. Filing on Jun 2, 2027 would owe $1,080.

    Open in the calculator →
  5. Earliest benefit date Jun 11, 2021, large entity, filed Jun 11, 2027$0

    The illustration family above. Filing on the anniversary itself is exactly six years, so no fee. From Jun 12, 2027 it is $2,700.

    Open in the calculator →

How do you plan around it?

  • Docket the last free day, not just the anniversary. Work out each pending family’s earliest benefit date, then roll the anniversary forward over weekends and Federal holidays.
  • File the continuations you expect to need before the six-year line. After that, every new continuing application with the same earliest benefit date owes the fee, and the amount rises after nine years.
  • Keep a member pending. A continuation can only be filed while a family member is still pending (35 U.S.C. 120). The continuation window checker shows which members of a family are pending and finds the earliest benefit date from USPTO continuity data.
  • Budget the whole filing. For a large entity filing in DOCX with up to 20 claims and 3 independent claims, the basic filing, search and examination fees are $2,000. With the 6-year fee, that is $4,700 at filing (fee schedule).
  • Check the filing receipt to confirm the benefit claim was entered.

Informational only, not legal advice. Have a registered patent practitioner review before filing.

Frequently asked questions

Is the continuation surcharge counted from the earliest priority date?

No. It is counted from the earliest benefit date: the earliest filing date claimed under 35 U.S.C. 120, 121, 365(c) or 386(c). A provisional claimed under 119(e) and a foreign priority claim under 119(a) or 365(b) do not count (CAF Quick Reference Guide Q4). Counting from either makes the fee look due earlier than it is.

How much is the USPTO continuing application fee?

For a filing more than 6 and no more than 9 years after the earliest benefit date: $2,700 large entity, $1,080 small entity, $540 micro entity. For more than 9 years: $4,000, $1,600 or $800. The 9-year amount is the total, reduced by any 6-year fee already paid in the same application (37 CFR 1.17(w)).

Is filing on the 6-year anniversary free?

Yes. The fee applies to filings "more than six years" after the earliest benefit date, so the anniversary is the last free day. If it falls on a Saturday, Sunday or Federal holiday within the District of Columbia, filing on the next business day is still free (CAF Guide Q14–15; 35 U.S.C. 21(b); 37 CFR 1.7(a)). The same rule applies at nine years.

Do divisionals pay the continuation surcharge?

Yes. The fee applies to continuations, divisionals and continuations-in-part alike, in utility, plant and design applications. Divisionals get no exemption (CAF Guide Q1).

Does a 371 national stage application owe the fee?

Yes, if the PCT application itself claims a US nonprovisional under 35 U.S.C. 120 or 365(c). Its actual filing date for this purpose is the international filing date (CAF Guide Q7 and Example 6).

Does the fee apply to applications filed before Jan 19, 2025?

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 does not change the earliest benefit date (CAF Guide Q6, Examples 12–13).

What happens if the continuing application 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. Check the filing receipt, which shows the benefit claims entered (CAF Guide Q10–11).

Have a pending family and a competitor product in mind?

Send us the application number and a link to the product. We check whether the as-filed specification may support claims covering it, and reply by email within 48 hours. The first reviews are free.