Did you miss the due date to respond to the US Patent Office after they sent you a letter? Did you apply for a patent at some time in the past that never got approved? Everyone who applies for a patent will need to reply to the Patent Office before getting a patent. If you don’t reply by the due date, your patent application will be abandoned.
Patent Office Due Dates
Every person who applies for a patent will need to reply to the Patent Office at some point in the process. If your patent application gets approved, you will need to reply by paying a fee to have the patent granted. If the Patent Office thinks your invention is not different enough from existing inventions, it will ask you why you think you deserve a patent and you will need to reply with your arguments. Each time the Patent Office sends you a letter, it will tell you the due date by which you must reply. If you don’t reply by the due date, your patent application will be abandoned, and you will not obtain a patent.
Unintentional Abandonment
A patent application that has become abandoned may be revived if the reason it became abandoned was “unintentional.” 37 CFR 1.137(a). Basically, this means you did not purposely allow your patent application to be abandoned. Instead, it became abandoned through accident, mistake, or some other not on purpose reason.
Say for example, the Patent Office sends you a letter showing you existing inventions they found and asks why you think your invention is different enough from those existing inventions for you to deserve a patent. The Patent Office says you have up to six months to reply. You get the letter, but you forget about it. By the time you remember you need to reply to the Patent Office, the six months they gave you have passed, and your patent application is abandoned. If you genuinely forgot about the due date to reply to the Patent Office, then the Patent Office will almost certainly allow you to revive your patent application. You need to submit a request, called a petition, to the Patent Office asking them to revive your patent application.
However, let’s say you didn’t respond to the Patent Office within the six months they gave you because you decided you did not want to pursue the patent anymore. Perhaps you decided you no longer want a patent, or you didn’t think the patent application would be approved because the Patent Office found existing inventions that are quite like your invention. In this case, you would not be eligible for revival because you did not miss the due date to reply unintentionally. Instead, you intentionally decided not to timely reply to the Patent Office leading to the abandonment of your patent application and now cannot revive it.
The key is whether you allowed the patent application to be abandoned on purpose or not on purpose. Only if not on purpose can you revive a patent application. If it was abandoned on purpose, you cannot revive it.
Revival Not Guaranteed
It is up to the US Patent Office whether to grant a request for revival and revival is not guaranteed. The Patent Office may ask you for information as to why you missed a Patent Office due date before it decides whether to revive your patent application. The burden is on you to convince the Patent Office that you allowed your patent application to be abandoned unintentionally, as opposed to intentionally.
Revive As Soon as Possible
If your patent application becomes abandoned, you will want to request revival as soon as possible. The longer you wait, the higher the risk that the Patent Office does not grant your request for revival. It’s easier to convince the Patent Office that you missed the due date by accident if you just missed it recently. If your patent application has been abandoned for several years, it’s going to be much more difficult to convince the Patent Office that it was an accident.
No False Statements
Remember to request for revival only if you truly missed a due date unintentionally. Lying to the Patent Office will jeopardize your patent rights and is considered fraud upon the Patent Office.
Conclusion
Missing a Patent Office due date resulting in abandonment can be fixed if the patent application became abandoned unintentionally. Once you discover your patent application has become abandoned unintentionally, promptly ask the Patent Office to revive your patent application. The longer you wait, the lower the chance of revival.
Finally, keep in mind that with a request for revival, you must also submit to the Patent Office whatever reply you were supposed to send to the Patent Office in the first place but didn’t do. For example, if the Patent Office sent you a letter saying your invention is too similar to existing inventions and you forgot to reply, now with your request for revival you must also submit your reasons for why you deserve a patent. Whatever you didn’t send to the Patent Office causing your patent application to be abandoned must now be made up and sent along with your request for revival.
The patent application process is complicated. If your patent application has been abandoned, it is recommended to seek the assistance of a licensed patent attorney or patent agent to assist you in requesting revival to increase your chances of success.
