Reviving abandoned patents

Abandoned patents
The reanimation of dead patents!

Have an accidentally abandoned US patent or patent application?  You can often revive them if you promptly file a USPTO petition for revival.

It just so happens that your friend here is only mostly dead. There’s a big difference between mostly dead and all dead.” Miracle Max, “The Princess Bride.”

The USPTO declares patents and patent applications to be “abandoned” for various reasons. The USPTO often classifies patents as abandoned for failure to pay maintenance fees. They also frequently declare patent applications abandoned for failure to respond to USPTO office communications (and pay any needed fees) within the time stated on the office action.

Petitions to revive abandoned patents

Don’t despair.  Many of these abandoned patents are initially only “mostly dead,” rather than “all dead,” These “mostly dead” patents can be revived by promptly filing a petition to “revive.” This petition requires you to pay the appropriate revival fee (and other fees due) and generally fix whatever other problem caused the abandonment in the first place.

The keyword here is “prompt.”  Here, the USPTO attempts to distinguish between “unintentional abandonment” and “intentional abandonment.”  As you might imagine, this can be a somewhat subjective determination. The USPTO typically considers both the length of the delay and the explanations of the circumstances.

A determination of “intentional abandonment” means that the patent is legally now “all dead,” which is why it is essential to act promptly.

The issue of what is “unintentionally abandoned” is a tricky gray area in patent law. Although often a form statement such as “the entire delay was unintentional” will suffice, the longer the delay, the more that this strains credibility. This delay increases the chance that the USPTO will require you to provide additional explanation. It also increases the probability that they will deny your petition to revive.

The general rule is thus that you should try to initiate the revival actions as quickly as possible. Fortunately, this is “quick” by legal standards, rather than “quick” by video gamer standards.

As a very rough and informal rule of thumb, which you should not rely upon, petitions filed within about six months of abandonment often have a good chance of succeeding. Petitions filed up to two years after abandonment can often also work (although the risk of rejection may increase).

Beware the second anniversary.

The two-year time period is a significant milestone for abandoned patents. If you can respond in less than two years, there is a better chance that the USPTO computer system will automatically decide your petition. The automated system will often give you a quick decision, and it also tends to be less critical. After two years, the computer system will refuse to consider your petition. Instead, you must submit your request form to human examiners.  These human examiners tend to be slower and also more critical. 

Even after two years or more, the USPTO may accept your petition to revive. But here, the situation does become more problematic. The petitions office may require more of an explanation for the delay, and the chances that the USPTO will deny your petition can be substantially higher.

Note that “expired” patents – patents that have died because their full patent term (often 20 years from the filing date) is up, are “all dead.”  These are lifetime expired patents, and they are now public domain.