The UPSTO has published a new Federal Register notice titled “Clarification of practice for revival, reinstatement, and delayed priority petitions.”
Here, the PTO is explaining that it is going to require patent applicants to submit “additional information” to explain its claim of “unintentional” delay in meeting a particular deadline. Additional information will be required by the PTO when:
- a petition to revive an abandoned application is filed more than two years after the date the application became abandoned;
- a petition to accept a delayed maintenance fee payment is filed more than two years after the date the patent expired for nonpayment; and
- a petition to accept a delayed priority or benefit claim is filed more than two years after the date the priority or benefit claim was due.
The notice also indicates that the PTO might also require additional information in other situations where there is “a question as to whether the delay was unintentional.”
Up to now in these situations, the USPTO has simply allowed the attorney or party to sign a statement that the entire delay was unintentional — relying upon the duty of candor and good faith to ensure that the claim was accurate. However, that structural trust appears to be breaking down.
37 CFR 1.137 already indicates that the PTO “may require additional information where there is a question whether the delay was unintentional.” What is happening here appears to be an expansion of this regulation.