Why No Patent Revivals?

By Dennis Crouch

Once a patent issues, the patentee must pay a regular maintenance fee to keep the patent in force. The PTO offers a six-month grace period following the due date where the maintenance fee can still be paid (plus a surcharge) without justifying the delay. At that point, the patent is deemed expired. However, the USPTO allows subsequent revival under either the (low) unintentional or (high) unavoidable standard.

The chart above shows data for patents that were revived (data through April 8, 2014). The chart shows a steep decline in revival that began in 2011. If Q1 of 2014 is indicative, this year there will be fewer than 200 of these revivals. At this point, I don’t know the cause of the steep decline – thoughts on why?

14 thoughts on “Why No Patent Revivals?

  1. As an Architect and an independent inventor with only one U.S. Patent, I never suspected my unprotected status under U.S. law – i.e., there is no provision to secure my constitutional rights by ensuring access to qualified legal representation !! This is absolutely un-American anti-democratic FRAUD, and has cost America twenty years of our Founding Fathers “progress” envisioned by the guys who sought to prevent the oligarchy they experienced in the Old World and which our’s is now becoming …. SHAME AND DISGRACE ON U.S.! Patents have become a method for the powerful to pick the brains of unsuspecting neophytes ! We deserve to go down.

  2. The steep decline is due for a number of matters (not only one) also well describe by others here before.

    Another reason is, for my opinion, the increasing of Maintenance Fees before the USPTO and therefore also the cost for revivals (both Attorney and Government Fees) after the 6 months grace period.

    In any case I think that the 6 months grace period is sufficient for the Proprietor to decide maintaning his case or not.

  3. Effective 18 December 2013, the Patent Law Treaties Implementation Act of 2012 (PLTIA) eliminated the the provisions pertaining to revival of an abandoned application or acceptance of a delayed maintenance fee payment on the basis of unavoidable delay standard.

    Section 1.378(a) & (b) was amended to eliminate the provisions pertaining to unavoidable delay.

    Now effective 18 December 2013, the USPTO allows subsequent revival only under the (low) unintentional standard.

    link to gpo.gov

      1. Dennis,

        Could the apparent decline simply be a consequence of the manner your data set is produced? An event can be recorded much later than when it occurred, I can think of a few examples in EPO databases.

        The standard 6 month grace period is an international obligation pursuant Article 5bis(1) of the Paris Union.

        Article 5bis
        All Industrial Property Rights: Period of Grace for the Payment of Fees for the Maintenance of Rights;
        Patents: Restoration

        (1) A period of grace of not less than six months shall be allowed for the payment of the fees prescribed for the maintenance of industrial property rights, subject, if the domestic legislation so provides, to the payment of a surcharge.

        Member states are free to offer more than the mandatory minimum:

        (2) The countries of the Union shall have the right to provide for the restoration of patents which have lapsed by reason of non-payment of fees.

  4. My guess is that the increased fee structure (2x) has caused rights holders to be more deliberate about what they are keeping/dropping. In other words, they are no longer dropping cases by accident because there is increased budgetary pressure to decide which cases they will keep well in advance.

  5. Possibilities?: Better docket controls? More clients refusing to pay for time extensions in general? More fear of malpractice suits for unintended abandonments? Delayed PTO statistics?

  6. Better Docketing Software?

    Introduction of Maintenance fee payment services (i.e., businesses that pay the fee on time, for a fee)?

  7. Dudas didn’t allow any patents to issue in 2002, so there are no patents for which paying the 12 year maintenance fee can be overlooked in 2014.

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