In the recent case of Field Hybrids, A Minnesota District Court chided the Patent Office for allowing the patentee to revive its abandoned patent application. The Appeals Court found that the patentee had failed to prove to the PTO that the application was unintentionally abandoned.
Now, a Patently-O reader questions the statutory authority allowing revival of unintentionally abandoned applications that were abandoned for failure to reply to an office action.
The Rules (CFR) provide for revival of missed reply dates, the Law (USC) does not:
37 CFR 1.137 provides for reviving patent applications that were abandoned either (a) unavoidably or (b) unintentionally. This rule is based on 35 USC 133. However, Section 133 only provides for revival of applications determined by the Director to be unavoidable. Section 133 does not discuss unintentionally abandoned applications.Thus, the statute does not authorize revival of applications that were abandoned unintentionally.
UPDATE:
As noted by another reader, the Statute does provide some support for revival of unintentionally abandoned applications. Specifically, under 35 U.S.C. 111, an application abandoned for failure to submit a fee and oath may be revived if the omission is deemed unintentional.
