USPTO tightens requirements for restoring abandoned and lapsed patent rights

New practice reduces from two years to one year the period after which applicants and patent owners must provide additional information explaining an unintentional delay.

The United States Patent and Trademark Office (USPTO) has changed its practice for petitions based on unintentional delay, reducing from two years to one year the period after which applicants and patent owners must provide additional information explaining the circumstances of the delay.

The change took effect on August 13, 2026, and applies to new petitions filed after that date. It affects, among other matters, petitions to revive abandoned patent applications and petitions seeking acceptance of delayed maintenance-fee payments following expiration of a patent for failure to pay the fee.

The change could have particular implications for companies managing large patent portfolios, where acquisitions, corporate restructuring, changes in patent counsel, or docketing failures can result in missed deadlines and delayed discovery of abandoned or lapsed rights.

One-year threshold replaces two-year threshold

Under the previous USPTO practice, additional information concerning whether a delay was unintentional was generally required where certain petitions were filed more than two years after the relevant deadline or event.

The final rule reduces that threshold to more than one year. The USPTO said the change is intended to promote greater certainty and predictability concerning patent rights and encourage petitioners to seek relief promptly when a delay has occurred.

Importantly, the change does not create a one-year deadline for seeking revival or other relief. Instead, where a qualifying petition is filed more than one year after the relevant date, the petitioner must provide additional information establishing that the entire delay was unintentional.

The USPTO may also require additional information in cases where the petition is filed within one year if questions arise concerning whether the delay was actually unintentional.

Abandoned patent applications

The change is particularly relevant to petitions seeking revival of abandoned patent applications under 37 CFR 1.137.

Where an applicant fails to take an action required to prevent abandonment, the application may become abandoned by operation of law. A petition based on unintentional delay can in appropriate circumstances seek to revive the application. Under the revised practice, a petition filed more than one year after the application became abandoned must include additional information concerning the circumstances of the entire period of delay.

The distinction could be significant for businesses with complex or frequently changing patent portfolios.

An abandonment may not immediately be identified following an acquisition, merger, restructuring, or change of outside counsel. Under the revised practice, discovering an abandonment more than one year after the relevant date will now trigger the additional-information requirement.

Maintenance-fee lapses

The same one-year threshold applies to petitions seeking acceptance of a delayed maintenance-fee payment after a patent has expired for failure to pay the required fee.

The USPTO’s current guidance confirms that where a petition under 37 CFR 1.378 is filed more than one year after the patent expired for nonpayment of the maintenance fee, additional information concerning the circumstances of the entire delay is required. The patent owner must still satisfy the applicable requirements for acceptance of the delayed payment, including establishing that the delay was unintentional.

The change therefore does not remove the mechanism for restoring a patent after a maintenance-fee lapse. Instead, it increases the information required once the lapse has remained unaddressed for more than one year.

Higher fee after one year

The final rule also changes the point at which the higher petition fee applies. For the affected petitions, the higher fee now applies where the petition is filed more than one year after the applicable deadline or event, rather than more than two years.

The USPTO explained that the higher fee reflects the additional information and examination required for petitions involving longer periods of delay.

Broader scope

The change is not limited to abandoned applications and maintenance-fee lapses.

The final rule covers petitions concerning several situations in which relief is sought on the basis of unintentional delay, including certain delayed foreign priority claims, domestic benefit claims, and failures to act in proceedings involving international design applications.

The result is a broader change to USPTO petition practice rather than a standalone amendment to the rules governing patent revival.

Portfolio-management implications

The practical effect for patent owners is likely to be felt most acutely where large portfolios are managed across multiple entities, jurisdictions, and service providers.

A missed US prosecution or maintenance deadline may initially appear to be a routine docketing error. But if the problem is not identified for more than one year, the patent owner or applicant will now need to provide a more detailed explanation of the entire period of delay and pay the applicable higher petition fee.

This makes prompt identification of abandoned applications and lapsed patents particularly important following corporate transactions and changes in patent ownership or representation. The USPTO’s underlying rationale is that, as the period of delay increases, it becomes more difficult to establish that the entire delay was unintentional.

What patent owners should watch

The revised practice does not eliminate the USPTO’s mechanisms for correcting certain unintentional failures to act. It does, however, create an earlier point at which additional scrutiny and a higher fee can arise.

For patent owners, the change reinforces the importance of accurate portfolio records, effective docketing systems, and clear allocation of responsibility for US prosecution and maintenance obligations. For portfolios affected by acquisitions, mergers, or restructuring, timely review of the status of US applications and patents may become particularly important.

The revised practice has been effective since August 13, 2026, meaning that qualifying new petitions filed after that date are subject to the new one-year threshold.

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