TAKEAWAY: As of August 13, 2026, a petition based on unintentional delay filed more than one year after the missed deadline must include an explanation of the circumstances surrounding the delay with payment of a higher petition fee.
Several mechanisms for correcting a missed deadline at the USPTO adhere to the “unintentional delay” standard. These include revival of an abandoned application under 37 C.F.R. § 1.137, acceptance of a delayed maintenance fee payment under 37 C.F.R. § 1.378, acceptance of a delayed priority claim under 37 C.F.R. § 1.55(e) or § 1.78(c) and (e), and excusal of a failure to act within prescribed time limits in an international design application under 37 C.F.R. § 1.1051. Each requires a statement that the delay was unintentional, and each lets the Director demand more information where there is reason to question unintentionality.
The USPTO ordinarily takes an applicant or patentee statement at face value, relying on the duty of candor and the obligations of 37 C.F.R. § 11.18. On March 2, 2020, a notice (85 FR 12222) highlighted an exception: for cases in which an applicant filed a petition more than two years after the missed deadline, the USPTO would ask for additional information.
The USPTO has now cut that two-year window in half. A final rule (91 FR 37826) requires additional information when an applicant or patentee files the petition more than one year after the application became abandoned, the patent expired, the priority or benefit claim fell due, or the applicable time limit for an international design application under the Hague Agreement expired. The rule took effect August 13, 2026, and governs any new petition filed after that date. The USPTO reasons that “[t]he longer the delay . . . the greater the likelihood that the entire delay may not be unintentional.” While petition fees have not changed, this new rule imposes the higher petition fee at one year rather than two.
The final rule states that “[s]eparate and apart from the one-year period in this notice, the USPTO may require additional information whenever there is a question as to whether the delay was unintentional.” The threshold therefore marks where the USPTO will routinely ask, not the limit of when it can.
For petitions to revive an abandoned application, M.P.E.P. § 711.03(c) may be indicative of what constitutes “additional information.” For example, an applicant may explain when they first learned of the lapse and why discovering it took as long as it did. However, because lapses tend to surface late, the difficulty may instead be in finding the facts that led to the delay rather than presenting said facts. A docketing audit, a maintenance fee reconciliation, or diligence on acquired assets may turn up an abandoned application or lapsed patent years later, by which point the knowledge sits with prior counsel or a former annuity provider.
Two habits may help reduce risk. First, move quickly once a lapse comes to light. For revival petitions, M.P.E.P. § 711.03(c) states that the USPTO does not generally question the delay in filing an initial petition where the applicant files within three months of first being notified of the abandonment and within one year of the abandonment itself. Filing inside that window avoids the threshold question from arising at all, including for a third party later challenging a resulting patent. Second, gather the facts as soon as the lapse surfaces rather than when the petition is drafted. Those with knowledge of the circumstances are easiest to reach contemporaneously, and the shortened window to file a petition leaves less room to find them afterward.