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What abandonment means, when a petition to revive under 37 CFR 1.137 is available, and what to do in the first hour.

If the reply period expired with no reply on file, the application is abandoned under 37 C.F.R. 1.135. That is usually recoverable rather than fatal: a petition to revive under 37 C.F.R. 1.137 requires the reply itself, the petition fee, and a statement that the entire delay was unintentional. Two things make outcomes worse — delay, because the unintentional-delay statement becomes harder to make honestly as time passes, and filing something incomplete instead of a proper reply. Check the six-month date first: periods people believe have expired sometimes have not.

Have I lost the application?

Probably not, and the first step is not panic but arithmetic. Take the mailing date and add six months. If that date has not passed, you may still be inside the extendable window and can act normally by paying an extension fee.

If it has passed, the application is abandoned and the route back is a petition to revive. It is a well-trodden procedure, but it needs to be done properly and promptly.

What to do in the first hour

  1. Compute the six-month date from the mailing date

    If it has not passed, an extension of time under 1.136(a) may still make a normal reply possible. This is the single most valuable check.

  2. Check the status in Patent Center

    The application record shows whether a notice of abandonment has issued and what the Office believes the position is.

  3. Do not file a partial reply

    An incomplete filing does not preserve your position and can complicate the petition. The reply that accompanies a revival petition has to be a proper reply.

  4. Get a registered practitioner involved

    Revival involves a statement made to the Office about the cause of the delay. That is not a form to improvise.

Time is working against the petition, not just the deadline

The petition requires a statement that the entire delay was unintentional. The longer the gap between learning of the abandonment and filing, the harder that statement is to make. Acting this week is materially better than acting next month.

Abandonment

37 C.F.R. 1.135

Revival

37 C.F.R. 1.137, petition plus fee plus the reply

Required statement

That the entire delay was unintentional

First thing to check

Whether six months from the mailing date has actually passed

Tell us the mailing date and we will work out where you stand

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Questions people ask

There is no fixed cut-off in the rule, but the requirement that the entire delay was unintentional becomes progressively harder to satisfy as time passes. Petitions filed promptly after discovery are straightforward; petitions filed years later attract scrutiny.

The petition fee is set by regulation and is significant but not prohibitive, and there is professional cost in preparing both the petition and the substantive reply that must accompany it. Both are far less than the value of a lost application.

Yes. A successful petition to revive restores the application to pending status and examination continues. The abandonment does not by itself change the patentability of the claims.

Where this comes from

Every statement of law or procedure on this page traces to a primary source you can check yourself.

Last reviewed August 30, 2026

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