MPEP § 2590 — MPEP § 2590
Current through: 2022-07-01

2590-Acceptance of Delayed Payment of Maintenance Fee in Expired Patent to Reinstate Patent 
 
 

 
 
 
 
 
 
 
 

 

 
 
 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

 
 
 
 
 

 
 
 
 
 
 
 
 
 
 
 

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 Manual of Patent Examining Procedure 

 Chapter 2500 

 Section 2590 
 

 
 
 
 
 
 2590 Acceptance of Delayed Payment of Maintenance Fee in Expired
 Patent to Reinstate Patent [R-01.2024]
 

 
 37 CFR 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 unintentional. 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 unintentionally delayed payment of
 a maintenance fee must include:
 
 (1) the required maintenance fee set forth in
 § 1.20(e) through
 (g) ;
 

 (2) the petition fee as set forth in §
 1.17(m) ; and
 

 (3) A statement that the delay in payment of the
 maintenance fee was unintentional. The Director may require
 additional information where there is a question whether the delay
 was unintentional.
 

 
 

 (c) Any petition under this section must be signed in compliance
 with §
 1.33(b) .
 

 (d) Reconsideration of a decision refusing to accept a delayed
 maintenance fee may be obtained by filing a petition for reconsideration
 within two months of the decision, or such other time as set in the decision
 refusing to accept the delayed payment of the maintenance fee. 
 

 (e) If the delayed payment of the maintenance fee is not
 accepted, the maintenance fee will be refunded following the decision on the
 petition for reconsideration, or after the expiration of the time for filing
 such a petition for reconsideration, if none is filed.
 

 
 

 37 CFR
 1.378(a) provides that the Director of the Office may accept the
 payment of any maintenance fee due on a patent based on an expiration of the patent if,
 upon petition, the delay in payment of the maintenance fee is shown to the satisfaction
 of the Director of the Office to have been unintentional. See subsection I below for
 explanation. The appropriate petition fee set forth in 37 CFR
 1.17(m) must be paid as a condition of accepting payment of the
 maintenance fee. If multiple maintenance fees due on a single patent have not been paid,
 a separate petition fee is required for each delayed maintenance fee payment. A
 statement that the delay in payment of the maintenance fee was unintentional is also
 required with respect to each delayed maintenance fee payment (a delay of more than two
 years after the date of nonpayment of a maintenance fee requires additional information
 of the facts and circumstances surrounding the entire delay to support a conclusion that
 the entire delay was indeed ‘‘unintentional.’’). See Clarification of the
 Practice for Requiring Additional Information in Petitions Filed in Patent
 Applications and Patents Based on Unintentional Delay, 85 FR 12222-24
 (March 2, 2020). While the patentee can include the statements of unintentional delay in
 a single petition (if desired), a separate petition fee is required for each delayed
 maintenance fee payment. If the Director of the Office accepts payment of the
 maintenance fee upon petition, the patent shall be considered as not having expired but
 will be subject to the intervening rights and provisions of 35 U.S.C.
 41(c)(2) .
 

 Any petition under 37 CFR 1.378(b) should be marked on
 the front page of the communication to the attention of the Office of Petitions and
 addressed as follows:
 

 Mail Stop Petition
Commissioner for Patents
P.O. Box 1450
Alexandria, Virginia 22313-1450

 For applications filed on or after September 16, 2012, 37 CFR
 1.33(b) requires that amendments and other papers be signed by:
 (1) a patent practitioner of record; (2) a patent practitioner not of record who acts in
 a representative capacity under the provisions of 37 CFR 1.34 ; or (3) the applicant
 ( 37 CFR
 1.42 ). 37 CFR 1.33(b) further provides
 that, unless otherwise specified, all papers submitted on behalf of a juristic entity
 must be signed by a patent practitioner. 
 

 For applications filed prior to September 16, 2012,
 pre-AIA 37 CFR
 1.33(b) requires that amendments and other papers be signed by:
 (1) A patent practitioner of record appointed in compliance with pre-AIA 37 CFR
 1.32(b) ; (2) A patent practitioner not of record who acts in a
 representative capacity under the provisions of 37 CFR 1.34 ; (3) An assignee as
 provided for under pre-AIA 37 CFR 3.71(b) of this chapter; or (4) All of the
 applicants ( pre-AIA 37
 CFR 1.41(b) ) for patent, unless there is an assignee of the
 entire interest and such assignee has taken action in the application in accordance with
 pre-AIA 37 CFR
 3.71 of this chapter. Pursuant to 37 CFR 1.31 as
 revised effective September 16, 2012, a juristic entity (e.g., organizational assignee)
 must be represented by a patent practitioner and therefore, unless otherwise specified,
 all papers submitted on behalf of a juristic entity on or after September 16, 2012 must
 be signed by a patent practitioner.
 

 37 CFR
 1.378(d) provides a mechanism for obtaining reconsideration of a
 decision refusing to accept a maintenance fee upon petition filed pursuant to paragraph
 (a). This mechanism is a petition for reconsideration which may be filed within 2 months
 of, or such other time as set in, the decision refusing to accept the delayed payment of
 the maintenance fee. The decision on the petition for reconsideration, may provide that
 no further reconsideration or review of the matter will be undertaken by the Director of
 the Office. The maintenance fee submitted will be refunded if the delayed payment of the
 maintenance fee is not accepted. The refund will be made following the decision on the
 petition for reconsideration if the decision provides that no further reconsideration or
 review of the matter will be undertaken, or, upon request, after the expiration of the
 time for filing a petition for reconsideration, if none is filed. 
 

 I. UNINTENTIONAL DELAY Under 35 U.S.C. 41(c)(1) , the
 Director of the Office may accept late payment of any maintenance fee filed after
 the 6-month grace period, if the delay in payment is shown to the satisfaction of
 the Director of the Office to have been unintentional. See MPEP § 711.03(c) 
 for a general discussion of the “unintentional” delay standard. 
 

 In addition to the timeliness deadline set forth in the preceding
 paragraph, a petition filed under the unintentional standard of 37 CFR
 1.378(b) must include:
 

 
 (A) the required maintenance fee set forth in 37 CFR
 1.20(e) through (g) ; 
 

 (B) the petition fee set forth in 37 CFR
 1.17(m) ; and 
 

 (C) a statement that the delay in payment of the maintenance fee
 was unintentional.
 

 
 A person seeking reinstatement of an expired patent should not make
 a statement that the delay in payment of the maintenance fee was unintentional
 unless the entire delay was unintentional, including the period from discovery that
 the maintenance fee was not timely paid until payment of the maintenance fee. See
 Rembrandt Technologies LP v. Comcast of Fla./Pa., LP , 899
 F.3d 1254, 1273, 127 USPQ2d 1826, 1838 (Fed. Cir. 2018). For example, a statement
 that the delay in payment of the maintenance fee was unintentional would not be
 proper when the patentee becomes aware of an unintentional failure to timely pay the
 maintenance fee and then intentionally delays filing a petition for reinstatement of
 the patent under 37 CFR 1.378 . While the Office reserves the right to request
 additional information whenever there is a question as to whether the delay is
 unintentional, a person filing a petition seeking reinstatement of an expired patent
 more than two years after the date of expiration for nonpayment of a maintenance fee
 is required to provide additional explanation of the circumstances surrounding the
 delay that establishes that the entire delay was unintentional. See also
 MPEP §
 711.03(c) for further discussion of the “unintentional”
 delay standard. 
 

 When a petition to accept unintentionally delayed payment of a
 maintenance fee in an expired patent is filed no more than two years from the date
 the patent expired, the petition may be automatically processed and immediately
 decided using the web-based ePetition process via the UPSTO patent electronic filing
 system. If the ePetition process is not available or desired, petitioner should use
 PTO/SB/66 form found on the USPTO forms website at www.uspto.gov/PatentForms to file a petition to accept
 unintentionally delayed payment of a maintenance fee in an expired patent. The
 petition will be processed by the Office of Petitions.
 

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 2501-Introduction 

 2502-2503-[Reserved] 

 2504-Patents Subject to Maintenance Fees 

 2505-[Reserved] 

 2506-Times for Submitting Maintenance Fee Payments 

 2507-2509-[Reserved] 

 2510-Submission of Maintenance Fee Payments and Documents 

 2511-2514-[Reserved] 

 2515-Information Required for Submission of Maintenance Fee Payment 

 2516-2519-[Reserved] 

 2520-Maintenance Fee Amounts 

 2521-[Reserved] 

 2522-Methods of Payment 

 2523-2529-[Reserved] 

 2530-Special Acceptance of Maintenance Fee Payments Containing Informalities 

 2531-Payment Late or Insufficient 

 2532-Duplicate Payments 

 2533-2539-[Reserved] 

 2540-Fee Address for Maintenance Fee Purposes 

 2541-[Reserved] 

 2542-Change of Correspondence Address 

 2543-2549-[Reserved] 

 2550-Entity Status Discounts 

 2551-2559-[Reserved] 

 2560-Revocation of Power of Attorney and Withdrawal of Attorney 

 2561-2569-[Reserved] 

 2570-Maintenance Fee Payment Status Requests 

 2571-2574-[Reserved] 

 2575-Notices 

 2576-2579-[Reserved] 

 2580-Review of Decision Refusing to Accept and Record Payment of a Maintenance Fee Filed Prior to Expiration of Patent 

 2581-2589-[Reserved] 

 2590-Acceptance of Delayed Payment of Maintenance Fee in Expired Patent to Reinstate Patent 

 2591-Intervening Rights in Reinstated Patents 

 2592-2594-[Reserved] 

 2595-Forms 

 

 

 
 

 
 
 

 
 

 

 
 
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 Last Modified: 
 
 03/09/2026 20:50:47