How does the USPTO determine if a delay in responding to an Office action was ‘unintentional’?
How does the USPTO determine if a delay in responding to an Office action was ‘unintentional’?
The USPTO evaluates the circumstances surrounding the delay to determine if it was truly unintentional. According to MPEP 711.03(c):
‘The USPTO requires that a petition under 37 CFR 1.137(a) be accompanied by a statement that the entire delay in filing the required reply from the due date for the reply until the filing of a grantable petition pursuant to 37 CFR 1.137(a) was unintentional, but the Director may require additional information where there is a question whether the delay was unintentional.’
The USPTO may consider factors such as:
- The length of the delay
- The reasons for the delay
- Whether the applicant acted promptly once the abandonment was discovered
- Any evidence of deliberate abandonment
If the delay extends beyond two years from the date of abandonment, the USPTO will typically require additional information to support the claim of unintentional delay.
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