PTO Fees and 1, 2, 3

This actually happened. A patent application was pending before the PTO. In forwarding a response that required an extension of time, being on the cusp and not sure when the response would be sent or received, the applicant paid the extension of time fee using the PTO’s credit card option (37 CFR 1.23b), instructing the PTO to charge the requisite fee to a designated credit card.
Tilt. The response , it turned out, required payment of a two month extension fee. However, when other than a specific amount for an extension of time is designated on the credit card payment form, the practice at the PTO is to charge a one month extension to the card. Which meant that the fee was insufficient. Which meant that the applicant was notified of this. Which meant that a MUCH larger fee had to be paid to return the application to the examination group.
Is this one month rule proper? Rule 1.23b in relevant part states: “payment of a fee by credit card must specify the amount to be charged to the credit card . . .” The applicant argued that the original credit card authorization had directed that the appropriate fee for the required extension of time be charged. The PTO did not do this. Instead, it charged a one month fee when a two month fee was required.
The applicant was informed by the petitions examiner of the one month rule, the petitions examiner citing Rule 1.23b. The applicant responded that this rule only requires that the specified amount be designated, and it was: the amount for the required extension of time. The petitions examiner replied, again citing the one month rule and explaining that an open-ended fee authorization can only be used for fees charged to a deposit account at the PTO.
So, what does all this teach?
1. Don’t use a PTO credit charge authorization for payment of a fee designated in any way but as a stated dollar amount.
2. The PTO is interpreting “must specify the amount to be charged” in Rule 1.23b, when it applies to “the requisite” extension of time payment, as authorizing only a one month extension fee. When it is insufficient, too bad.
3. Don’t argue. Just bite the bullet and pay.

It sure looks to me like the PTO is interpreting Rule 1.23b in an unjustified way. The Rule only requires the amount to be charged to the credit card to be “specified.” What it apparently means, or is being interpreted to mean, is that the charge must be in a specified dollar amount. When it is not, and when the charge applies to an extension of time, then the one month rule applies. (JH)