What Restrictions Are Needed to Revive a Patent Application?

• Patent applications are abandoned after an absence of communication with the United States Patent and Trademark Office (USPTO) for a period of six months. Abandoned applications can be revived with a petition filed by the applicant. Under Title 37 of the Code of Federal Regulations (CFR), section 1.137, an abandoned patent application may be revived if the failure to communicate was because of an either unavoidable or unintentional delay.
  
  

Unavoidable Delay

• Abandoned patent applications may be revived by petition if the entire delay was unavoidable. According to 37 CFR 1.137(a), the petition must convincingly show that the entire delay was unavoidable and be accompanied by proof to that effect. Statements by employees, clerks or couriers responsible, or other documented evidence, must be presented for the petition to be granted.
  
  

Unintentional Delay

• Patent applications abandoned due to an unintentional delay in communication may be revived upon petition by the applicant. Under 37 CFR 1.137(b), no proof is necessary, but the USPTO may require additional information to determine the validity of the petition. In the event an application was allowed to be abandoned, and a petition to revive was not filed in a timely fashion, or the unintentional delay was the result of deliberate actions by the applicant, the petition will be denied.
  
  

Petition Requirements

• A petition to revive a patent application must be filed within two months of learning of the abandonment and must contain the following: the required form; petition fee; either a statement that the delay was unintentional or proof that it was unavoidable; and a terminal disclaimer, which states that should a patent be issued for the application, the expiration date will reflect the period of abandonment.