A patent application the USPTO has marked abandoned can be brought back through a Petition to Revive an Abandoned Patent Application under 37 CFR 1.137. To succeed, you file the reply or payment you originally missed, pay a petition fee that starts at $2,260 for a large entity, and declare that the entire delay was unintentional.1eCFR. 37 CFR 1.137 – Revival of Abandoned Application, or Terminated or Limited Reexamination Prosecution If your application falls into one of the older or design-application categories, you also include a terminal disclaimer giving up patent term equal to the period of abandonment. Get all the pieces right and the USPTO puts your application back on the examiner’s docket as if the abandonment never happened.
The Four Things Your Petition Must Include
A grantable petition has four components. The USPTO will not act on a petition that is missing any of them. Form PTO/SB/64 walks you through each requirement and is the standard vehicle for filing.2United States Patent and Trademark Office. Petition for Revival of an Application for Patent Abandoned Unintentionally
The Reply or Payment You Missed
You must submit whatever caused the abandonment. If you missed an Office Action response, include a complete reply addressing every point the examiner raised. If you missed the issue fee, include full payment of that fee.1eCFR. 37 CFR 1.137 – Revival of Abandoned Application, or Terminated or Limited Reexamination Prosecution
If your nonprovisional application was abandoned for failure to prosecute, you have an alternative. You can satisfy the reply requirement by filing a continuing application or, in some cases, a Request for Continued Examination instead of responding directly to the outstanding Office Action.1eCFR. 37 CFR 1.137 – Revival of Abandoned Application, or Terminated or Limited Reexamination Prosecution
A Statement That the Delay Was Unintentional
You must declare that the entire delay, from the day the reply was originally due to the day you file the petition, was unintentional. The statement appears on Form PTO/SB/64, and the USPTO takes it seriously. The Director can demand additional information if there is any question about whether the delay was truly unintentional.2United States Patent and Trademark Office. Petition for Revival of an Application for Patent Abandoned Unintentionally
The Petition Fee
The USPTO charges a two-tier petition fee. Filing within two years of the date the required action was due costs less. Filing after two years costs significantly more.3eCFR. 37 CFR 1.17 – Patent Application and Reexamination Processing Fees
- Within two years: $2,260 large entity, $904 small entity, $452 micro entity.
- After two years: $3,000 large entity, $1,200 small entity, $600 micro entity.
The petition fee is separate from whatever fee was originally due, such as the issue fee, and from any terminal disclaimer fee.4United States Patent and Trademark Office. USPTO Fee Schedule
A Terminal Disclaimer, if Your Application Falls in the Older Categories
A terminal disclaimer dedicates a slice of your eventual patent term to the public equal to the period of abandonment. It prevents you from gaining extra patent life because the application sat dormant. The disclaimer is required for:
- All design applications.
- Utility and plant applications filed before June 8, 1995.
- Certain applications filed between June 8, 1995 and May 29, 2000 that were abandoned during an appeal, interference proceeding, or under a secrecy order.
The terminal disclaimer fee is $183 regardless of entity size.4United States Patent and Trademark Office. USPTO Fee Schedule For utility and plant applications filed on or after May 29, 2000, no terminal disclaimer is needed. The patent term adjustment system automatically reduces your term to account for the abandonment period.5United States Patent and Trademark Office. Manual of Patent Examining Procedure Section 711 – Abandonment of Patent Application
Why the Two-Year Mark Matters
Filing within two years of the abandonment date does more than save you fees. It keeps you within the standard petition process. File after two years and the USPTO applies heightened scrutiny to the unintentional-delay statement.6United States Patent and Trademark Office. Revival Based on Unintentional Delay
Specifically, the USPTO may ask you to explain when you or your attorney first became aware that the application was abandoned, and to show how the delay in discovering the abandonment occurred.5United States Patent and Trademark Office. Manual of Patent Examining Procedure Section 711 – Abandonment of Patent Application “I forgot” is not persuasive for a multi-year gap. The USPTO wants a concrete narrative: a docketing error that went undetected, a change in legal counsel, a medical emergency. Your explanation must cover the entire delay. You need to account for why it took so long to discover the problem and why you did not act sooner once you did.
How to File
ePetition
For simple revivals, the USPTO offers an ePetition process that handles everything in one online session. ePetition is available when the application was abandoned after a first Office Action but before a Notice of Allowance, and the abandonment date is less than two years old. It cannot be used for provisional, design, plant, or reissue applications.7United States Patent and Trademark Office. ePetition Filing Requirements – Petition for Revival of an Abandoned Patent Application A separate ePetition covers late issue fee payments, with its own eligibility rules.8United States Patent and Trademark Office. ePetition Filing Requirements – Petition to Accept Late Payment of Issue Fee
Patent Center
If your situation does not fit the ePetition criteria, file through Patent Center, the USPTO’s general electronic filing system.9United States Patent and Trademark Office. File Online Upload your completed Form PTO/SB/64, your Office Action response or issue fee payment, any terminal disclaimer, and pay all fees in a single submission.
You can also mail the petition package to the Commissioner for Patents. Include printed copies of the petition form, your reply documents, and payment for all fees. Use a tracked mailing service so you have proof of the filing date. That date determines which fee tier applies and whether you fall within the two-year window.
What Happens After You File
The USPTO’s Office of Petitions reviews your submission for completeness. If the reply, the fee, the unintentional-delay statement, and any required terminal disclaimer are all in order, the office issues a Decision Granting Petition. Your application returns to the examiner’s docket, and prosecution resumes where it left off.1eCFR. 37 CFR 1.137 – Revival of Abandoned Application, or Terminated or Limited Reexamination Prosecution
Petitions are rarely denied outright when all four components are present and the filing is within two years. The most common reason for denial is an incomplete reply to the outstanding Office Action, not the petition paperwork itself. If the Office of Petitions spots a deficiency, it will typically issue an order explaining what is missing and give you a chance to correct it before a final denial.
What Revival Costs You in Patent Term
Revival saves your application, but the abandonment period does not come free. How the USPTO accounts for the lost time depends on when your application was filed.
For utility and plant applications filed on or after May 29, 2000, which covers most pending applications today, the patent term adjustment provisions automatically reduce your term to reflect any delay caused by the abandonment. If you do not file a petition to withdraw the abandonment within two months of the Notice of Abandonment, the reduction under 37 CFR 1.704(c)(4) kicks in.5United States Patent and Trademark Office. Manual of Patent Examining Procedure Section 711 – Abandonment of Patent Application Every month the application sat abandoned is a month you will not get back on the tail end of your patent term.
For design applications and older utility or plant applications where a terminal disclaimer is required, the math is direct. The disclaimer carves off exactly as many days of patent term as the application was abandoned.1eCFR. 37 CFR 1.137 – Revival of Abandoned Application, or Terminated or Limited Reexamination Prosecution
Third Parties May Have Rights You Cannot Undo
While your application sat abandoned, competitors may have started using your invention. If the application was previously published as a pre-grant publication, the public could see what you claimed and reasonably conclude you had walked away from it. Companies may have built products, made investments, or entered markets on that assumption.
When you revive the application and eventually obtain a patent, courts can apply equitable intervening rights to protect those third parties. This judge-made doctrine allows someone who relied in good faith on the apparent lapse of your patent rights to continue their activities without infringement liability. Courts weigh the level of reliance, the size of the investment, and whether it would be fundamentally unfair to force them to stop. Absolute intervening rights may also shield third parties from liability for acts completed before the revival.
Intervening rights do not prevent you from reviving or from enforcing the patent against new infringers. They can, however, significantly limit the value of the patent against anyone who started during the abandonment window. The longer the abandonment lasted, and the more publicly visible it was, the stronger these defenses become.
Cases Where Revival Will Not Help
A provisional application abandoned because you failed to respond to an Office requirement, such as a missing-parts notice, can be revived through a petition under 37 CFR 1.137. But a provisional application cannot be treated as pending beyond twelve months from its filing date under any circumstances.1eCFR. 37 CFR 1.137 – Revival of Abandoned Application, or Terminated or Limited Reexamination Prosecution If the twelve-month window has closed, revival will not let you convert the provisional into a nonprovisional. Your only path is to file a new nonprovisional application, and you will lose the provisional’s filing date as your priority date.
Express abandonment is another dead end for a standard revival. If you filed Form PTO/AIA/24 to intentionally abandon the application,10United States Patent and Trademark Office. Express Abandonment Under 37 CFR 1.138 you generally cannot reverse it through a petition to revive. The petition requires you to show the delay was unintentional, which is difficult to reconcile with a deliberate filing that asked the USPTO to abandon the application. If express abandonment happened by mistake, your argument has to be that the abandonment itself was unauthorized or filed in error, which is a steeper climb than a standard revival.
If Your Petition Is Denied
A denial is not always the end. If the denial rests on a fixable deficiency, such as an incomplete Office Action response or a missing fee, you can refile with corrected materials.
If the denial rests on a substantive determination that your delay was intentional, your options narrow. You can request reconsideration with additional evidence and a fuller explanation. In extraordinary circumstances where compliance with a USPTO rule would cause genuine hardship, you can petition for a waiver or suspension of that rule under 37 CFR 1.183, though the bar is high. You must show a specific extraordinary situation and demonstrate that justice requires the waiver.11United States Patent and Trademark Office. Waiver or Suspension of Rules The rule being waived cannot be one required by statute, which limits this avenue considerably.
The strongest move is to avoid the fallback path altogether. File within two years, include every required component, and if there is any risk the USPTO will question your delay narrative, address it in your initial petition rather than waiting to be asked.