1 Comment

1. Reinstatement of the patent as described by M.P.E.P 2590.

   2590 Acceptance of Delayed Payment of Maintenance Fee in Expired Patent to Reinstate Patent [R-2]

   37 CFR 1.378 Acceptance of delayed payment of maintenance fee in expired patent to reinstate patent.

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   (a) The Director may accept the payment of any maintenance fee due on a patent after expiration of the patent if, upon petition, the delay in payment of the maintenance fee is shown to the satisfaction of the Director to have been unavoidable (paragraph (b) of this section) or unintentional (paragraph (c) of this section) and if the surcharge required by § 1.20(i) is paid as a condition of accepting payment of the maintenance fee. If the Director accepts payment of the maintenance fee upon petition, the patent shall be considered as not having expired, but will be subject to the conditions set forth in 35 U.S.C. 41(c)(2).

   (e) Reconsideration of a decision refusing to accept a maintenance fee upon petition filed pursuant to paragraph (a) of this section may be obtained by filing a petition for reconsideration within two months of, or such other time as set in, the decision refusing to accept the delayed payment of the maintenance fee. Any such petition for reconsideration must be accompanied by the petition fee set forth in § 1.17(h). After decision on the petition for reconsideration, no further reconsideration or review of the matter will be undertaken by the Director. If the delayed payment of the maintenance fee is not accepted, the maintenance fee and the surcharge set forth in § 1.20(i) will be refunded following the decision on the petition for reconsideration, or after the expiration of the time for filing such a petition for reconsideration, if none is filed. Any petition fee under this section will not be refunded unless the refusal to accept and record the maintenance fee is determined to result from an error by the Patent and Trademark Office.Director of the OfficeDirector of the OfficeDirector of the OfficeMail Stop Petition

   Commissioner for Patents

   P.O. Box 1450

   Alexandria, Virginia 22313-1450Director of the OfficeUnder 35 U.S.C. 41(c)(1), the director of the Office mayDirector of the Office< to have been unintentional. See MPEP § 711.03(c) for a general discussion of the “unintentional” delay standard.

   In addition to the timeliness deadline set forth in the preceding paragraph, a petition filed under the unintentional standard of 37 CFR 1.378(c) must include:

   (A) the required maintenance fee set forth in 37 CFR 1.20 (e) through (g);

   (B) the surcharge for an unintentionally expired patent as set forth in 37 CFR 1.20(i)(2); and

   (C) a statement that the delay in payment of the maintenance fee was unintentional.

   A person seeking reinstatement of an expired patent should not make a statement that the delay in payment of the maintenance fee was unintentional unless the entire delay was unintentional, including the period from discovery that the maintenance fee was not timely paid until payment of the maintenance fee. For example, a statement that the delay in payment of the maintenance fee was unintentional would not be proper when the patentee becomes aware of an unintentional failure to timely pay the maintenance fee and then intentionally delays filing a petition for reinstatement of the patent under 37 CFR 1.378.

   Comment by Jonathan Paulis — April 7, 2006 #

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