37 CFR 1.137(b)

This is a discussion on 37 CFR 1.137(b) within the Copyright, Trademark, Patent forum, part of the INTELLECTUAL PROPERTY & INTERNET LAW category; Can anyone tel me what is the meaning of an "unintentional" delay in reference to 27 CFR 1.137(b)? If the ...

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Old Jul 16th, 2008, 01:08 PM   #1
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Default 37 CFR 1.137(b)

Can anyone tel me what is the meaning of an "unintentional" delay in reference to 27 CFR 1.137(b)? If the applicant didn't realize his application would be abandoned, due to travel, etc. is this sufficient? Or is ignorance not an acceptable "unintentional" delay?
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Old Jul 18th, 2008, 08:11 AM   #2
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Default Re: 37 CFR 1.137(b)

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Can anyone tel me what is the meaning of an "unintentional" delay in reference to 27 CFR 1.137(b)? If the applicant didn't realize his application would be abandoned, due to travel, etc. is this sufficient? Or is ignorance not an acceptable "unintentional" delay?
Maybe this will help answer your question...

When the app was actually abandoned, but circumstances allow the app to be Revived: (37 CFR 1.137)
In order to get a patent app revived, the applicant must first show that the app was abandoned: 1. Due to unavoidable circumstances (37 CFR 1.137(a)); 2. Due to uninentional oversight in not replying. (37 CFR 1.137(b)). Additionally, since these abandonments are always related to failing to respond or pay a necessary fee on the app, the petition must be accompanied by the proper response for whatever underlying reason created the abandonment in the first place (like if you owed a fee, the fee should be included with the revival petition).

Unavoidable Abandonment: "If unexpectedly or through the unforeseen fault or imperfection of these agencies (referring to the mail system, to worthy employees, etc.) and instrumentalities, there occurs a failure, it may be said to be unavoidable"
  • Unavoidable means that it was not possible to file a response all the way up until the petition to revive is filed with the necessary response.
  • There has to be the petition fee (37 CFR 1.17(l))
  • There may have to be a terminal disclaimer too.
  • The burden for unavoidable is higher to meet than unintentional, and its fee is lower too.

1. When an employee makes a clerical error that is the sole cause of the delay in making the reply, and the business had a process that would normally work to get the reply made, and that the employee was trained and exercided due care then the delay could be seen as unavoidable.

Unintentional Abandonment: In this case the applicant unintentionally failed to respond to an OA. The applicant could offer proof, or will (if responding promptly enough) be able to swear a statement that the delay was unintentional. Remember, that bad faith on the applicant's part will usually end in the patent being revoked.
  • Petition fee under 37 CFR 1.17(m) (higher than for an unavoidable delay)

Read more... click the link below

I defaced t3h Intraweb!: § 23: When apps are abandoned; How to say an App was not actually abandoned; When it is possible to Revive an Abandoned App (710.05-711.06)


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I'm not a lawyer. The information I gave is based on certain research. Please review the information yourself to make an informed decision. Also, the information I posted may no longer be accurate.

Last edited by sandra; Jul 18th, 2008 at 09:01 AM.
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