Today, the U.S. Patent and Trademark Office (USPTO) published a notice in the Federal Register, shortening the grace period for “unintentionally delayed” patent petitions from two years to one year before requiring a detailed justification and an additional fee.
What You Need to Know
“Unintentional delay” petitions include petitions to revive applications, accept delayed maintenance fee payments, accept delayed priority or benefit claims, and excuse an applicant’s failure to act within prescribed time limits for international design applications. For guidance on what constitutes a sufficient explanation of “unintentional” delay, refer to M.P.E.P. § 711.03(c).
Starting August 13, 2026, the USPTO will require an extra explanation and a higher fee for “unintentional delay” petitions that exceed one year. Previously, this stricter standard only kicked in if the delay exceeded two years.
Practice Tips
Audit Pending Delays Immediately: Review your docket for any abandoned applications, missed maintenance fees, or unasserted priority claims that are approaching or have already passed the one-year date but are still prior to the two-year date. Work with your IP counsel to file any such petitions before August 13, 2026 to avoid the heightened explanation requirement and increased fee.
File a Petition as Soon as Possible Once a Delay is Identified: If a delay is identified within one year of a deadline, work with your IP counsel to file the petition as soon as possible in order to avoid the heightened justification requirements.
Build a Robust “Paper Trail” for Delays: After the rule is instituted on August 13, 2026, for any delays that inevitably cross the one-year threshold, start gathering documentation as soon as possible. Work with your IP counsel immediately to document the specific chain of events causing the delay. Ensure that you can clearly demonstrate that the entire period of delay was genuinely unintentional.