Updated July 14, 2020:

A petition to revive abandoned patent application is filed to restart the patent application process after it has been abandoned. Depending on the length of the abandonment, reviving the application may be very difficult.

Reviving a Patent Application

According to the United States Patent and Trademark Office (USPTO), there can be a variety of reasons for an abandoned patent application or patent. For example, failing to pay required maintenance fees can easily result in a patent being declared abandoned. The most common reason that a patent application is declared abandoned is that the person filing for the patent has not responded to a USPTO communication by the required deadline. Failure to pay fees can also result in an abandoned patent application.

Fortunately, after a patent application has been declared abandoned, it can usually be revived by completing a few simple steps:

  • Filing a petition to revive abandoned patent application.
  • Paying a revival fee and any other fees that are owed.
  • Correcting the issue that resulted in the abandonment.

Intentional and Unintentional Abandonment

It's important to remember that there is a difference between a patent application that has been unintentionally abandoned and one whose abandonment was intentional.

Whether a patent application has been abandoned intentionally or unintentionally can depend on several factors, including the explanation provided by the applicant and the amount of time they delayed responding to the USPTO. Once a patent has been declared intentionally abandoned, it cannot be revived.

In patent law, it can be hard to define exactly what constitutes unintentional abandonment. For example, on the petition to revive, you could state that the delay in response was unintentional. The lengthier your delay, however, the harder it will be to believe that you failed to respond unintentionally, which means the USPTO may request a different explanation before reviving your patent or may reject your petition outright.

Basically, once your patent application has been declared abandoned, you should petition for revival as soon as possible. If you file your petition within six months of your application being abandoned, it is likely that it will be revived. You may even be able to file your petition two years after your application has been abandoned and have a good shot at revival. Waiting any longer than this will make reviving your patent much more difficult.

For instance, after the two-year mark, your petition will be at much greater risk of being rejected, and the USPTO will likely request a detailed explanation for the delay. You should remember that expired patents, which are patents whose full 20-year term have been completed, are impossible to revive.

Office Actions and Abandoned Patents

After you've filed your patent application, you should expect to receive notices from the USPTO soon after, and you must be certain you're responding to these notices as soon as you can. Every notice, also called an Office Action, that the USPTO sends will have a deadline by which you must respond. If you miss this deadline, your idea will have been disclosed, and you may have lost the right to patent the idea.

Not responding to Office Actions will result in your patent application being declared abandoned. Generally, Office Actions will come with a three-month time limit. You can, however, sometimes extend this deadline by an additional three months. If you have not responded to the Office Action six months after the original mailing date, your patent application will be considered abandoned by the USPTO, meaning you will no longer be able to patent your idea unless you can provide a valid explanation for the delayed response.

For unintentional delays, you must explain the delay and then pay the correct petition fee for your entity:

  • Large entity: $1,700.
  • Small entity: $850.
  • Micro entity: $850.

You may also be required to pay maintenance fees or extension fees.

In some cases, you may be able to claim that the delay was not only unintentional but was also unavoidable. Proving an unavoidable delay, however, can be difficult, and the USPTO only accepts this explanation in limited circumstances. For instance, an avoidable delay would be the death of a person you have appointed to pay your maintenance fees. You will generally have more success filing a petition to revive your application based on an unintentional delay.

If you need help with a petition to revive abandoned patent application, you can post your legal needs on UpCounsel's marketplace. UpCounsel accepts only the top 5 percent of lawyers to its site. Lawyers on UpCounsel come from law schools such as Harvard Law and Yale Law and average 14 years of legal experience, including work with or on behalf of companies like Google, Menlo Ventures, and Airbnb.