Why is a terminal disclaimer required for petitions to excuse unintentional delay in international design applications?
A terminal disclaimer is required for petitions to excuse unintentional delay in international design applications to prevent the applicant from unfairly extending the patent term due to the delay. This requirement is specified in 37 CFR 1.1051(d).
The MPEP explains: “Pursuant to 37 CFR 1.1051(d), any petition under 37 CFR 1.1051(a) must be accompanied by a terminal disclaimer and fee as set forth in 37 CFR 1.321 dedicating to the public a terminal part of the term of any patent granted thereon equivalent to the period beginning on the due date for the reply for which applicant failed to timely act and ending on the date of filing of the reply required and must also apply to any patent granted on a continuing design application that contains a specific reference under 35 U.S.C. 120, 121, 365(c), or 386(c) to the application for which relief under 37 CFR 1.1051 is sought.“
This ensures that the applicant does not benefit from the additional time gained due to the unintentional delay, maintaining fairness in the patent system.
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