What is the effect of filing a petition to revive on patent term adjustment?
Filing a petition to revive an abandoned application can affect patent term adjustment (PTA) in the following ways:
- For applications filed on or after May 29, 2000, any patent term adjustment is automatically reduced under 37 CFR 1.704(c)(4) if a petition to revive is not filed within 2 months of the notice of abandonment
- If no notice of abandonment was received, PTA is reduced under 37 CFR 1.704(a) for the period of time the applicant failed to engage in reasonable efforts to conclude prosecution
- For applications filed before May 29, 2000, a terminal disclaimer may be required in some cases
The MPEP states:
In utility and plant applications filed on or after May 29, 2000, a terminal disclaimer should not be required as a condition of granting an untimely petition to withdraw the holding of abandonment. This is because any patent term adjustment is automatically reduced under the provisions of 37 CFR 1.704(c)(4) in applications subject to the patent term adjustment provisions of the American Inventors Protection Act of 1999 (AIPA) if a petition to withdraw a holding of abandonment is not filed within two months from the mailing date of the notice of abandonment, and if applicant does not receive the notice of abandonment, any patent term adjustment is reduced under the provisions of 37 CFR 1.704(a) by a period equal to the period of time during which the applicant ‘failed to engage in reasonable efforts to conclude prosecution’ (processing or examination) of the application.
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