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March 08, 2020

Comments

In my comments below, I will refer to a hypothetical abandonment of an application, but the same comments would apply to expiration of a patent due to failure to pay the maintenance fee or delay in claiming priority benefits within the specified timeframes.

This looks like a "codification" of the existing practice known to insiders in the Office of Petitions, which I would characterize as (1) petitions filed within 3 months of abandonment (date that abandonment takes place by operation of law, not date of issuing the Notice of Abandonment) will be granted with no questions asked, if accompanied by a statement of unintentional delay; (2) petitions filed between 3 months of abandonment and 1 year of abandonment will be granted if accompanied by a statement of unintentional delay, unless there is evidence in the record that shows that abandonment was intentional, or that the entire delay in filing a grantable petition was not in fact unintentional; (3) petitions filed more than one year after abandonment, but less than two years of abandonment will require a showing (rather than just a statement) that the entire delay from the date of abandonment until the date of filing of a grantable petition was unintentional; and (4) petitions filed more than two years after abandonment will require a showing similar to the one mentioned in (3) above, except the burden of proof will be even stricter than in (3), perhaps something close to the old "unavoidable delay" standard.

All in all, I don't believe this is a change in practice. Rather, it is the PTO sharing with the general public what was a de facto practice within the PTO Office of Petitions.

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