Maier & Maier

New Rules For Proving Unintentional Delay At USPTO

On March 2, 2020, the USPTO published a new notice in the Federal Register clarifying their practice regarding unintentional delay.

“The United States Patent and Trademark Office (USPTO) is clarifying its practice as to situations that will require additional information about whether a delay in seeking the revival of an abandoned application, acceptance of a delayed maintenance fee payment, or acceptance of a delayed priority or benefit claim was unintentional.”

Effective immediately, the USPTO will now require additional information about the unintentional delay from the applicant seeking to:

  1. revive an application which has been abandoned for more than two years;
  2. file a maintenance fee on a patent which has been expired for more than two years
  3.  claim priority or a benefit for an application more than two years after such claim was due.

The USPTO notice also provides that the USPTO may require additional information to any other situation where the unintentional nature of a delay is in question.

The additional information will serve to demonstrate that the entire duration of the delay was unintentional. If any portion of the delay was intentional, the delay does not qualify as unintentional and the request will not be accepted. MPEP 711.03(c).

With the increased scrutiny for revival, diligent care by applicant and practitioners alike takes on heightened importance to adequately protect your patent rights.

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