Asked in Patents (Intellectual Property) for Nevada

Q: Can I follow through with the patent process after it has been abandoned for some time?

2 Lawyer Answers
Peter D. Mlynek
Peter D. Mlynek
Answered
  • Patents Lawyer
  • Moorestown, NJ

A: Under some circumstances it is possible to revive a patent or a patent application that was abandoned. For example, if you wanted to pay the maintenance fee or file a Reply, but couldn't (such as your company went bankrupt), then you can revive it if you pay sufficient fees. Or if the patent lapsed, but you did not mean to let it go abandoned (such as you just forgot about having to pay the fees), then you can revive it if you pay bigger fees. But if you abandoned it purposefully (such as "Meh, we are not interested in this patent anymore, let's just let it lapse") then you won't be able to revive it when you change your mind later on.

Kevin E. Flynn
Kevin E. Flynn
PREMIUM
Answered
  • Patents Lawyer
  • Chapel Hill, NC

A: If you question was about a patent application that you abandoned by not answering an office action, then the answer is yes but only if the following things are true.

1) You have not had a public sale of your invention. AND

2) You have not had a public use of your invention (including demonstrations at a trade show). AND

3) You have not made a public disclosure of the details of your invention more than a year ago. This would include a published patent application if you filed your original patent application if you did not file a non-publication request with your first patent application. It would include material on your website or social media that was not password protected and limited to folks that had signed an Non-Disclosure Agreement.

Note -- if you have a PCT application pending, you can enter the US via the PCT application if you do so before the 30 month date (even if there is a publication more than a year ago as long as that publication came after the priority date of the PCT application).

This is not simple material. I have given you enough so that you can discuss this with your patent attorney but if the invention is potentially valuable, this is not something that you should attempt to handle by blind questions on Justia or any other website.

I hope this helps.

Kevin E Flynn

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