What constitutes ‘unintentional’ delay for a revival petition?

‘Unintentional’ delay means the entire delay in filing the required reply from the due date until the filing of a grantable petition was unintentional. Some key points about unintentional delay:

• The USPTO generally accepts the statement of unintentional delay without requiring further information
• Deliberately choosing to abandon an application is not considered unintentional
• Changing one’s mind about abandonment later does not make the original delay unintentional
• The USPTO may require additional information about the delay if the petition is filed more than two years after the date of abandonment

As stated in the MPEP:

Where the applicant deliberately permits an application to become abandoned (e.g., due to a conclusion that the claims are unpatentable, that a rejection in an Office action cannot be overcome, or that the invention lacks sufficient commercial value to justify continued prosecution), the abandonment of such application is considered to be a deliberately chosen course of action, and the resulting delay cannot be considered as ‘unintentional’ within the meaning of 37 CFR 1.137.

To learn more:

• unintentional delay
• revival petition
• abandonment