What is the difference between ‘unavoidable’ and ‘unintentional’ abandonment in patent applications?
What is the difference between ‘unavoidable’ and ‘unintentional’ abandonment in patent applications?
The terms ‘unavoidable’ and ‘unintentional’ refer to different standards for reviving abandoned patent applications:
- Unavoidable abandonment: This is a higher standard that requires the applicant to show that the abandonment occurred despite all precautions taken. As stated in MPEP 711.03(c), ‘The word unavoidable… is applicable to those situations where the failure to timely file or pay a fee was the result of circumstances beyond the applicant’s control.’
- Unintentional abandonment: This is a less stringent standard where the applicant must show that the abandonment was unintentional. The MPEP notes, ‘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(b).’
Understanding these distinctions is crucial when petitioning for revival of an abandoned application.
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