Revival of a Patent Application under the Unintentional Delay Standard

A post I wrote about five years ago discussed how to revive an abandoned patent application. At that time, there were two standards for reviving an application: it could be revived under an “unintentional delay” standard or under an “unavoidable delay” standard. An application could be revived for a fee of about $900 if the entire delay in responding was unintentional. This was an easy standard to meet and essentially required, as long as it was truthful, a check-the box style statement that the delay was unintentional. Alternatively, an application could also be revived under the unavoidable delay standard, if the applicant and attorney had essentially tried just about everything to prevent abandonment of the application. That included calendaring everything and placing redundant reminders on file. It was a tough standard to meet, and applicant often opted simply to pay the increased fee under the unintentional standard rather than risk the lower fee (about $300) and be refused under the unavoidable standard.

In 2013, patent reform did away with the unavoidable standard for revival. While the Patent Office has continued to review petitions to revive which were filed on the unavoidable basis before the change in law, petitions filed afterward would not be considered if relying on that standard. Going forward, petitions to revive could only be filed on the unintentional standard and had to be accompanied by the higher filing fee.