How to Reinstate An Expired Patent

This article covers how to reinstate an expired patent – not revival of an abandoned patent application. They are very different, and I’ve previously written about the reviving an abandoned patent application.

After a patent issues, regular maintenance fees must be paid to keep it alive. At the each of 3.5 year mark, 7.5 year mark, and 11.5 year mark, a six-month window opens in which the patent owner can pay the required maintenance fees. The fees are different in each window, and they increase over time. If the fees are timely paid, the patent will remain in force until the next window. If the fees are not paid, however, the patent will expire.

As such, it is crucial that patent owners create reminders for these windows. They should probably create reminders on two separate calendar systems, as deadlines years in the future can be difficult to track.

Nevertheless, sometimes a maintenance fee is missed, and the patent does expire. There is a limited avenue to bring the patent back to life, however. A petition can be filed with the Patent Office requesting the delayed payment of a maintenance fee, if the delay was unintentional.

Any petition to accept an unintentionally delayed payment of a maintenance fee must include the missed maintenance fee, a petition fee, a statement that the delay in payment of the maintenance fee was unintentional. Sometimes, with long delays, the Patent Office will request require additional information regarding the delay, to determine whether it was truly unintentional or not.

If multiple maintenance fees are missed, it is possible to still reinstate the patent. However, each maintenance fee must be paid along with the petition fee, and this could be quite expensive. At the time of this writing, the petition fee only is $2,000 for large entities and $1,000 for small entities. And, if multiple maintenance fees have been missed, the delay is likely quite long, and the Patent Office will almost certainly inquire about the delay.

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