When can we reinstate our expired patent? How? 5 Answers as of June 12, 2015

We have a patent that has expired. It expired because of failure to keep up with the maintenance fees of the patent. When can we file a petition to help reinstate the expired patent?

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Sebby Law Office
Sebby Law Office | Jayne Sebby
Check the patent section of the U.S. Patent and Trademark Office website. Since a patent is published at the time of registration and you allowed the registration to lapse, there may not be much you can do.
Answer Applies to: Nebraska
Replied: 6/12/2015
Michael M. Ahmadshahi
Michael M. Ahmadshahi | Michael M. Ahmadshahi, Ph.D., Esq.
7 C.F.R. 1.378 Acceptance of delayed payment of maintenance fee in expired patent to reinstate patent. (a) The Director may accept the payment of any maintenance fee due on a patent after expiration of the patent if, upon petition, the delay in payment of the maintenance fee is shown to the satisfaction of the Director to have been unavoidable (paragraph (b) of this section) or unintentional (paragraph (c) of this section) and if the surcharge required by 1.20(i) is paid as a condition of accepting payment of the maintenance fee. If the Director accepts payment of the maintenance fee upon petition, the patent shall be considered as not having expired, but will be subject to the conditions set forth in 35 U.S.C. 41(c)(2). (b) Any petition to accept an unavoidably delayed payment of a maintenance fee filed under paragraph (a) of this section must include: o o (1) the required maintenance fee set forth in 1.20 (e)-(g); o (2) the surcharge set forth in 1.20(i)(1); and o (3) a showing that the delay was unavoidable since reasonable care was taken to ensure that the maintenance fee would be paid timely and that the petition was filed promptly after the patentee was notified of, or otherwise became aware of, the expiration of the patent. The showing must enumerate the steps taken to ensure timely payment of the maintenance fee, the date and the manner in which patentee became aware of the expiration of the patent, and the steps taken to file the petition promptly. (c) Any petition to accept an unintentionally delayed payment of a maintenance fee filed under paragraph (a) of this section must be filed within twenty-four months after the six-month grace period provided in 1.362(e) and must include: o o (1) the required maintenance fee set forth in 1.20 (e)-(g); o (2) the surcharge set forth in 1.20(i)(2); and o (3) a statement that the delay in payment of the maintenance fee was unintentional. (d) Any petition under this section must be signed by an attorney or agent registered to practice before the Patent and Trademark Office, or by the patentee, the assignee, or other party in interest.
Answer Applies to: California
Replied: 6/12/2015
Microtechnology Law & Analysis | Daniel Flamm
You can't, unless it was expired because of unintentional failure to pay a maintenance fee.
Answer Applies to: California
Replied: 6/12/2015
Law Office of Kirk Buhler
Law Office of Kirk Buhler | Kirk A Buhler
You have two years to file a petition to revive an expired patent due to lack of payment of the maintenance fee. The petition must include the petition fee, the maintenance fee, and late maintenance fee. You may also be required to make a statement regarding the delay. The petition form is PTO/SB65 or PTO/SB66.
Answer Applies to: California
Replied: 6/12/2015
Banner & Witcoff, Ltd. | Ernie Linek
If the expiration was UNINTENTIONAL - then you have two years from the expiration date to seek revival of the patent. UNINTENTION means just that - you did not intend to have the patent expire. Maybe there was a record keeping mistake. Maybe someone who did not understand the situation ignored the reminder from the Patent Office. Maybe you never received the reminder because you moved. Check out the revival form at www.uspto.gov. Act quickly. GOOD LUCK!
Answer Applies to: Massachusetts
Replied: 6/12/2015
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