Could I refile for patent protection after the application was abandoned? 6 Answers as of August 31, 2015

My Patent Application was abandoned after I did not answer the final Office Action. What recourse might I have? I have the Trade Mark issued on the Idea. Can I refile something for protection?

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Sebby Law Office
Sebby Law Office | Jayne Sebby
Probably not, unless the reason you didn't answer the final action notice was that you were physically unable to respond due to reasons completely beyond your control.
Answer Applies to: Nebraska
Replied: 8/31/2015
Michael M. Ahmadshahi
Michael M. Ahmadshahi | Michael M. Ahmadshahi, Ph.D., Esq.
You can file a petition to revive the application.
Answer Applies to: California
Replied: 8/25/2015
Law Office of Kirk Buhler
Law Office of Kirk Buhler | Kirk A Buhler
If you refile an abandoned application that has been published the examiner can reject your refiled application based upon the published application. You best option is to file a petition with the petitions office to revive the abandoned application based on an "unintentional" or "unavoidable" abandonment.
Answer Applies to: California
Replied: 8/25/2015
Eminent IP, P.C.
Eminent IP, P.C. | Paul C. Oestreich
Assuming you do not have a pending continuation application based on the same original patent specification and the now abandoned patent application was published, your patent rights to any novel and nonobvious features of your invention are now extinguished. Generally, US utility patent applications are published at approximately 18 months from filing date, unless a nonpublication request was filed with the application. So, presumably your patent application has already published and the public is now fully aware of what your invention is. Thus, your published patent application is now prior art to all subsequent inventors. Furthermore, you would also have lost rights if you do not have a pending application on file within 1 year of any public disclosure, sale or offer for sale of your invention. As for your trademark, that may be the only protection you have and it only protects use of the trademark you are using in association with your product. Without patent protection, you cannot prevent anyone from making, using or selling your invention, as long as they are not also using your trademark and thereby causing a likelihood of confusion in the marketplace. As always, you should consult with an intellectual property attorney to discuss your particular factual scenario and your intellectual property right options.
Answer Applies to: Utah
Replied: 8/25/2015
Banner & Witcoff, Ltd. | Ernie Linek
Check with a patent attorney - bring all facts, dates, office action for review. Sometimes you can revive an abandoned application - IF - the abandonment was unintentional. The revival petition is expensive. Your trademark registration protects only the mark - the "brand" name of the item - nothing more.
Answer Applies to: Massachusetts
Replied: 8/25/2015
    Microtechnology Law & Analysis | Daniel Flamm
    If it was unintentionally abandoned and only a few months have gone by, the original application may be revived by petition and a fee. A trademark does not protect an idea. Depending on your particular facts, it may be best to file a continuation-in-part after the application is revived.
    Answer Applies to: California
    Replied: 8/25/2015
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