USPTO Increases Scrutiny on Petitions Regarding Unintentional Delay
In a recent Federal Register notice (91 FR 37826 (June 24, 2026)) the USPTO announced a rule change shortening the period for filing petitions to take action despite an unintentional delay (such as petitions to revive), without showing an additional explanation for the delay. The time period for petitioning without providing an explanation (and paying a higher fee) will be reduced from two years to one year. The change takes effect for petitions to revive filed on or after August 13, 2026.
It is possible to take action after a USPTO deadline in some circumstances, when the delay in taking action was unintentional. These situations include revival of an abandoned application, acceptance of a delayed maintenance fee payment (reviving a lapsed patent), or acceptance of a delayed priority or benefit claim. A petition is required, along with payment of hefty fee ($2,260 for a large entity). The signer of the petition must include a statement that the entire delay was unintentional.
For petitions filed after a delay of more than two years the petitioner must “provide additional explanation of the circumstances surrounding the delay that establishes that the entire delay was unintentional,” MPEP 711.03(c)(II). This providing of “sufficient information of the facts and circumstances surrounding the entire delay,” MPEP 711.03(c)(II)(C), accompanies a petition with an even heftier fee ($3,000 for a large entity). The USPTO is now going to require this explanation and larger fee for petitions filed more than one year after the applicable deadline.
While the USPTO generally accepts a boilerplate statement for delays of a year or less (under the new rule), and may accept an applicant’s statement explaining a longer delay, the circumstances surrounding such petitions and statements should be expected to draw scrutiny during infringement proceedings. Patents have been found unenforceable due to inequitable conduct where a patent owner who revived a lapsed patent had failed to investigate whether the prior owner of the patent allowed it to lapse intentionally or unintentionally. See 3D Medical Imaging Systems v. Visage Imaging, 228 F. Supp. 3d 1331 (N.D. Ga. 2017). However, attorney-client privilege can make it difficult for accused infringers to investigate the circumstances surrounding a revival of a lapsed patent or abandoned application. See Freshub v. Amazon.com, No. 22-1391 (Fed. Cir. Feb. 26, 2024).
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