Reviving a Lapsed Patent

A lapsed US patent is not always gone for good. If the maintenance fee was missed unintentionally, the patent holder can petition the USPTO to accept the delayed payment and reinstate the patent. For competitors relying on a lapse, this creates a window of uncertainty.

The unintentional-delay standard

The USPTO will accept a delayed maintenance fee if the entire delay — from the missed deadline to the petition — was unintentional. The holder files a petition under 37 CFR 1.378, pays the overdue maintenance fee plus a petition fee, and states that the delay was unintentional.

Timing matters

Petitions filed within two years of the lapse are generally straightforward. Beyond two years, the USPTO may require additional information about the cause of the delay before accepting the payment. There is no absolute cut-off, but the evidentiary burden rises with time.

What it means for competitors

If you spot a competitor patent that has lapsed, do not assume the technology is permanently free. Check for a pending or recent petition to revive before committing to a product or freedom-to-operate decision. A patent that reinstates after you have invested can be costly.

Monitor both lapse and revival

PatentLapse tracks USPTO fee events for both directions — it flags when a watched patent lapses and when a previously lapsed patent is reinstated — so your freedom-to-operate picture stays current.

Last updated: 2026-08-30 · Data: USPTO public domain · Not legal advice — consult a patent attorney before acting on this information.