Petitions for Unintentional Delay: The Evidence Threshold

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The United States Patent and Trademark Office now requires additional information for unintentional-delay petitions when the delay exceeds one year, under a final rule cited as 91 FR 37826. The rule is effective August 13, 2026 and applies to any new petition filed after that date. It binds applicants and patentees who file petitions in patent applications and patents under 37 CFR Part 1; the statement that the entire delay was unintentional is still required in every case, and the extra showing sits on top of it.

This brief is drawn from a fixed snapshot of 1086 rules published September 1, 2023 – September 1, 2026 by 11 agencies that govern the industries covered here. It is not a live docket.

Source: Federal Register / eCFR.

What is in force now?

The rule is already effective. The Commerce Department, through the Patent and Trademark Office, published it on June 24, 2026 at 91 FR 37826, RIN 0651-AD92. The dates text states that the rule is effective August 13, 2026 and will be applicable to any new petition filed after the effective date.

A docketing or prosecution paralegal who is still working from a two-year additional-information trigger is working from superseded procedure. The notice is a final rule, not a proposal and not a reminder notice that leaves the old threshold in place.

The rule does not say it reopens petitions that were already filed before August 13, 2026. It states that it applies to any new petition filed after the effective date. A file that was revived, reinstated, or accepted under the prior practice is not, on this page, treated as automatically defective.

The obligation applies today to the next petition the firm files. That is the live duty: measure the delay against one year, attach the extra explanation when the delay is longer, and treat the corresponding petition-fee condition as having moved to the same one-year line.

What does the rule require?

The USPTO is revising its practice of requiring additional information for delays in taking certain actions in patent applications and patents from requiring additional information for delays exceeding two years to requiring additional information for delays exceeding one year. That sentence is the whole change in the additional-information condition, and it is the sentence a docketing desk should quote first.

The extra showing is on top of the statement of unintentional delay, not a substitute for it. The notice states that an applicant or patentee filing a covered petition more than one year after the relevant date must provide an additional explanation of the circumstances surrounding the delay that establishes that the entire delay was unintentional, and that this requirement is in addition to the statement that the entire delay was unintentional.

The covered petitions named in the notice are petitions to revive an abandoned application under 37 CFR Part 1, to accept a delayed maintenance-fee payment under 37 CFR Part 1, to accept a delayed priority or benefit claim under 37 CFR Part 1 and 37 CFR Part 1, and to excuse a failure to act within prescribed time limits in connection with an international design application under 37 CFR Part 1.

The one-year clock is measured from the date the application became abandoned, the date the patent expired for nonpayment, the date the priority or benefit claim was due, or the date the applicable prescribed time limit under the Hague Agreement expired, as the notice sets those dates out.

The USPTO is also changing the conditions for when the corresponding petition fee is required. 37 CFR Part 1(m)(1) is amended so that the fee under that paragraph applies when the petition is filed more than one year after the date when the required action was due; previously the same paragraph applied when the petition was filed more than two years after that date. The notice states that the fee rates in 37 CFR Part 1(m) will remain the same. This page does not restate a dollar amount; the closed fact set does not include one.

The rule does not say that additional information is required only after one year. Separate and apart from the one-year period, the USPTO may require additional information whenever there is a question as to whether the delay was unintentional.

That table is the differentiator. A petition filed thirteen months after abandonment now sits on the additional-information side of the line, even though it would have sat on the statement-only side of the old two-year line.

The rule does not say what facts will satisfy the additional explanation in a particular file. It does not say a form paragraph is enough. It does not say a docketing error is always unintentional. Those questions belong to the responsible attorney reading the primary text and the file.

Who has to comply?

The rule reaches any applicant filing a petition to revive more than one year after abandonment, any patentee filing a petition to accept a delayed maintenance fee more than one year after expiration for nonpayment, any applicant or patent owner filing a delayed priority or benefit claim more than one year after the claim was due, and any applicant filing a Hague-related petition under 37 CFR Part 1 more than one year after the required action.

In a law firm, that set of people is usually a docketing specialist, a prosecution paralegal, and the attorney whose name goes on the petition. The rule does not assign those internal roles. It assigns the showing.

A firm that only dockets revival petitions will still miss delayed priority claims, delayed benefit claims, delayed maintenance fees, and Hague petitions if those four are not on the same one-year watch. The notice names all of them.

Related operational reading that is already live, and that this page does not restate, includes the legal matter intake automation guide, the statute-of-limitations deadline recipe, and the legal conflict-of-interest checks comparison.

Where do law firms commonly fall short?

The shortfalls below are process patterns, not enforcement statistics. The rule does not publish a finding rate, a penalty dollar, or a count of refused petitions, and this page does not invent one.

The first pattern is a docket still coded to a two-year additional-information flag. A petition prepared thirteen months after abandonment then goes out with only the statement of unintentional delay. The rule now treats that delay as long enough to require the extra explanation.

The second pattern is treating the extra explanation as a replacement for the statement. The notice is explicit that the additional information is in addition to the statement that the entire delay was unintentional. A petition that tells the story of the delay and omits the statement is not complete on the face of the rule.

The third pattern is applying the new one-year line to revival and forgetting maintenance fees, priority claims, benefit claims, and Hague petitions. The notice walks through each of those sections. A desk that only updated the the applicable section template has not finished the job.

The fourth pattern is assuming that a delay of eleven months can never draw a request for more information. The rule states that the USPTO may require additional information whenever there is a question whether the delay was unintentional, separate and apart from the one-year period.

The fifth pattern is paying the wrong petition-fee condition because the fee paragraph still lives in a two-year checklist. The rule moved the the applicable section(m)(1) condition to more than one year after the required action was due. The rates did not change; the trigger did.

The sixth pattern is filing the extra explanation without inquiring into the underlying facts. The notice points to the duty of candor and to 37 CFR Part 11 in discussing why the Office has historically accepted the statement. An inaccurate statement that the entire delay was unintentional is not a paperwork miss; the notice itself flags the enforcement risk in later litigation. This page does not restate a case outcome as a penalty schedule. It records that the Office named the risk.

What self-audit can a docketing team run now?

A firm can run this checklist against open matters without waiting for the next abandoned application. The rule is already in force for new petitions filed after August 13, 2026.

1. List every petition type the firm files under 37 CFR Part 1, the applicable section, the applicable section, the applicable section, and the applicable section.

2. For each type, write down the date the notice uses to start the delay: abandonment, expiration for nonpayment, due date of the priority or benefit claim, or expiration of the applicable Hague time limit.

3. Change every docket flag that still fires at two years so that it fires at one year, and keep a separate flag for "Office may still ask sooner."

4. Open the petition templates and confirm that the statement of unintentional delay is still required on every petition, with a second exhibit slot for the additional explanation when the delay exceeds one year.

5. Open the fee checklist and confirm that the the applicable section(m)(1) condition is coded to more than one year, not more than two years. Do not type a dollar figure into the checklist unless the firm's fee schedule, read against the current 37 CFR Part 1(m) table, supplies it; this page does not.

6. Sample the last several unintentional-delay petitions in draft or in the outgoing queue. Any petition filed after August 13, 2026 whose delay is more than one year and that lacks the additional explanation is a miss against the live rule.

7. Route every file whose delay facts are unclear to the responsible attorney. The rule does not say a paralegal may certify that the entire delay was unintentional.

The two products a patent desk already runs for this work are Patent Center and AppColl. Patent Center is the USPTO's electronic filing and application-management system, which is where the petition is actually submitted and where the Office's notices land. AppColl is a docketing and patent-portfolio tool firms use to track due dates and matter status. Neither product decides whether a delay was unintentional. They hold the dates a person uses to see whether the extra showing is due.

A third product name would turn this page into a roundup. These two are named because they are the systems a paralegal already opens on the day a petition is prepared.

What can be automated is the flag that a matter's delay has crossed one year and that the template still lacks the additional-explanation exhibit. What needs a human decision is whether the facts in the file support a statement that the entire delay was unintentional.

How does a workflow flag petitions still using the old delay threshold?

Reconcile the matter docket against the change: each open matter maps to the filing, appearance, or fee the rule now requires and its due date. US Tech Automations flags matters still running on the superseded procedure and routes the correction to the responsible attorney.

That is flag-and-route. A queue item that says "this revival petition is 14 months after abandonment and the extra-showing exhibit is empty" is useful. A queue item that says "this delay was unintentional" is not a determination this workflow is allowed to make.

US Tech Automations can watch the one-year line across revival, maintenance-fee, priority, benefit, and Hague petition codes, attach the 91 FR 37826 citation to the task, and send the file to the named attorney. It cannot certify the statement of unintentional delay, select the petition fee, or file in Patent Center in place of the firm.

A useful configuration is one docket, the five petition codes, and a count of templates that still mention a two-year additional-information trigger. US Tech Automations should sit around AppColl dates and Patent Center filing events rather than inside the candor determination. The dates are evidence. The statement belongs to the attorney.

Key Takeaways

• The USPTO final rule at 91 FR 37826, RIN 0651-AD92, is effective August 13, 2026 and revises 37 CFR Part 1.

• Additional information is now required when the delay exceeds one year, down from two years, for revival, delayed maintenance-fee, delayed priority or benefit, and Hague-related petitions named in the notice.

• The statement of unintentional delay is still required in every case. The extra showing is on top of it.

• The corresponding petition-fee condition in 37 CFR Part 1(m)(1) now applies when the petition is filed more than one year after the required action was due. The notice states the fee rates remain the same.

• The one-year line is not a safe harbor. The USPTO may still require additional information whenever there is a question whether the delay was unintentional.

Frequently asked questions

Is the two-year additional-information practice still in force?

No. The rule revises that practice from delays exceeding two years to delays exceeding one year, effective August 13, 2026 for new petitions.

Does the extra showing replace the statement of unintentional delay?

No. The notice states that the additional explanation is in addition to the statement that the entire delay was unintentional.

Which petitions does the one-year line cover?

The notice names petitions under 37 CFR Part 1, the applicable section, the applicable section, the applicable section, and the applicable section.

Can the Office still ask for more information inside one year?

Yes. The rule states that, separate and apart from the one-year period, the USPTO may require additional information whenever there is a question as to whether the delay was unintentional.

Does this page state the petition fee in dollars?

No. The closed fact set does not include a pricing figure. The notice states that the fee rates in 37 CFR Part 1(m) remain the same and that the the applicable section(m)(1) condition now applies at more than one year.

Does following the self-audit guarantee a grantable petition?

No. This page is informational. It is not legal advice and does not create an attorney-client relationship. Consult a qualified professional and read the rule.

Disclaimer

This page is for informational purposes only. It is not legal or tax advice and does not create an attorney-client relationship. Consult a qualified professional about a particular petition, delay, or fee. Read the rule.

Every date, citation, RIN, CFR reference, and figure in these posts is copied verbatim from the Federal Register and eCFR as of the snapshot date. Nothing is estimated, modeled, or extrapolated. This is not legal or tax advice.

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Last reviewed: June 24, 2026

The exception path is the agentic workflow layer.