CAFC - USPTO Revival Actions are Not Subject to Third Party Challenge

In Excela Pharma Sciences, LLC v. Lee (2015), the Federal Circuit held a third party does not have "the right to challenge, by way of the Administrative Procedure Act (APA), a ruling of the Patent and Trademark Office reviving a patent application that had become abandoned by failure to meet a filing schedule established by the Patent Cooperation Treaty."

The Federal Circuit stated the Patent Act's "intricate scheme for administrative and judicial review of PTO patentability determinations" demonstrates Congress did not intend such challenges. See Pregis Corp. v. Kappos, (Fed. Cir. 2012).

Copyright © 2015 Robert Moll. All rights reserved.

USPTO Updated ADS Form and Forms to Revive a Lapsed Patent or an Abandoned Application Under Patent Law Treaty

The Patent Law Treaty (PLT) entered into force in the United States on December 18, 2013. The PLT is a multilateral treaty to harmonize patent procedures, the form and content of patent applications, and legal representation. My first impression is that it generally helps applicants when they make mistakes.

For example, the USPTO recently notified me that they had new USPTO forms to implement PLT procedures to revive a lapsed patent or an abandoned application:

• Application Data Sheet (PTO/AIA/14)
• Petition for Revival of an Application for Patent Abandoned Unintentionally under 37 CFR 1.137(a) (PTO/SB/64)
• Petition for Revival of an Application for Patent Abandoned for Failure to Notify the Office of a Foreign or International Filing (37 CFR 1.137(f))(PTO/SB/64a)
• Petition to Accept Unintentionally Delayed Payment of Maintenance Fee in an Expired Patent (37 CFR 1.378(b)) (both PTO/SB/66 and SB/66-EFS-Web)

The USPTO says for help in submitting forms using the electronic filing system (EFS) call the patent electronic business center (EBC) from 6:00 am to 12:00 midnight (ET) Monday - Friday at 1-866-217-9197 or send an email to ebc@uspto.gov. For information on the forms, email patentpractice@uspto.gov.

Copyright © 2013 Robert Moll. All rights reserved.