Abandoned Patent - refile?

[presmalibu]

I was given notice that my design patent was going to be allowed, but I never received that notice. So eventually I received a notice of abandonment since I didn't pay the fees. My request to withdraw the abandonment was denied. They said there was no reason to believe that I didn't receive the notice. I am not interested in pursuing that decision.

However, can I just reapply for the same design patent like it never happened and start the process over? I was given a Notice of Allowance for the patent (even though I actually did not receive it in the mail), so can I reference the original application or just really start with the new filing with the same drawings and no reference to the first patent application?

Thanks for your help!

What is the name of your state? California

 

[divgradcurl]

I was given notice that my design patent was going to be allowed, but I never received that notice. So eventually I received a notice of abandonment since I didn't pay the fees. My request to withdraw the abandonment was denied. They said there was no reason to believe that I didn't receive the notice. I am not interested in pursuing that decision.

However, can I just reapply for the same design patent like it never happened and start the process over? I was given a Notice of Allowance for the patent (even though I actually did not receive it in the mail), so can I reference the original application or just really start with the new filing with the same drawings and no reference to the first patent application?

Thanks for your help!

What is the name of your state? California

You would be to completely refile your patent; an abandoned patent cannot be referenced in your later-filed patent if it was abandoned prior to the filing of the later-filed patent. Since your original patent application is already abandoned, you cannot reference the original application; everything must be filed as if it were the first time.

How long ago did your application go abandoned? Usually there are two ways you can try to revive a patent -- the free way, which basically involves trying to show that the abandonment was not fault of your own, or "unavoidable" -- it sounds like you went down this path. However, you can also (depending on how long its been) usually revive a patent by filing a petition saying that the abandonment was "inadvertent" and paying a petition fee, you might want to look into that if you haven't already.

 

[presmalibu]

Abandoned Patent - refile or revive?

I see that reviving the patent would cost $750, plus the issue fee that should have been originally paid ($400).

It only costs $175 to start over. It is a simple design patent, and I usually file a petition to expedite the process because the inventor is over 65.

Other than time, what would be the downside to just starting over? $750 seems pretty steep.

Thanks for your reply. Much appreciated.

Location: California

 

[divgradcurl]

The main issue is that you would lose your priority date -- that may or may not be an issue in your particular case. You cannot use a abandoned application to establish a priority date, not can you refer to the abandoned application to support your new application. You may have a different examiner, who may have different arguments against your application.

 

[presmalibu]

Abandoned Patent - refile or revive?

Thanks again for your response.

This is an uncomplicated design patent. I think I will just refile as I did the first time with no reference to the original application. I am not worried about the date and time it takes to get the patent.

I appreciate your help.