What constitutes ‘unintentional’ delay for a revival petition?

This page is an FAQ based on guidance from the Manual of Patent Examining Procedure. It is provided as guidance, with links to the ground truth sources. This is information only: it is not legal advice.

‘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.