A patent applicant may appeal an application that has been rejected at least twice. A patent applicant has the option to request a pre-appeal conference. If the applicant fails to submit a pre-appeal brief with their notice of appeal, they are effectively waiving the pre-appeal conference. Normally, pre-appeals are reserved for only ‘clear errors’ made by the Examiner. Importantly, among those pre-appeals filed by attorneys, fewer than half produce a positive result, and often delay getting the appeal decided by the Board of Appeals and Interferences.
    After filing the notice of appeal (within the time allowed for response to the Final Office Action), without a pre-appeal brief, the Applicant has a two-month period to follow-up with an appeal brief. The requirements for an appeal brief’s format are very strict, particularly the Summary of Claimed Subject Matter. By my estimates, some 20-33% of appeal briefs are declared ‘non-compliant’ with these strictly applied standards. To know more, look up 37 C.F.R. 41.37.
    Sometimes, a normal appeal brief is sufficient to convince the Examiner as to some of the merits of the claims. If this persuasion occurs, the Examiner may respond with further Office Actions. In effect, the Appeal is suspended, though the applicant may file further appeal briefs later.
    The more frequent Examiner response to the appeal brief is an Answer. The Answer can be expected in about three months from filing the appeal brief. The notification date sets a 2-month deadline that is typically not extendable (except for sufficient cause shown).
    The Applicant responds to points and misunderstandings present in the Answer in a document called a Reply. The reply is subject to more flexible format rules than the Appeal brief. This document is important since it is the last word in the dispute between Examiner and Applicant. Once the Reply is filed, the case is docketed to the Board of Patent Appeals and Interferences (BPAI). Currently, the backlog at the BPAI is about 14-18 months.
    The BPAI may reverse, affirm, affirm-in-part, or return the appeal for deficiencies in form or process. More often than not, the BPAI reverses the Examiner as to at least one claim. Normally, the Examiner follows the decision with an office action that is not inconsistent with the BPAI decision. If the BPAI reversed the examiner, then the Examiner will likely (though there are exceptions) identify such a claim as allowable in the next office action.
Supplements to the Appeal Brief are permitted in circumstances where facts change during the pendency of the appeal. For example, Related Appeals and Interferences may be affected by appeals concerning related cases . In addition, the ownership of the patent application – causing a change in the real party in interest.
    The Appeal process is complex, factually intensive, and subject to strict form requirements. Anyone contemplating the filing of an appeal would be well served by hiring a licensed patent attorney to cover essential facts and processes. A through and up-to-date understanding of the applicable law is necessary to achieve the best result for a given patent application.

    Inventing is a tough job. After figuring out how to build something that works, is not too costly to make, and does not kill or injure someone, an inventor needs to run the gauntlet at the United States Patent and Trademark Office (USPTO) and try to prove that their invention satisfy a lengthy list of criteria. Chief among the criteria are requirements that the inventor seek to protect an appropriate subject matter; the inventor teach something that is absolutely new; and that the invention is not a mere obvious variation of existing knowledge.
    In addition, there are complicated rules concerning the claim format that really put the job of writing a patent application into the hands of a professional. In spite of the costs and expenses of having a patent attorney pursue the matter at the patent office, the USPTO finally rejects at least 50% of the patents applied for.

    The following is a simple mechanical invention that illustrates the challenges in writing a patent claim. First, each claim has to be recited as a single sentence that recites all parts that are necessary to practice the invention, but not so many that a competitor could avoid the claim by excluding a part from the design.
    In addition, there are many peculiarities concerning the interpretation of the words used in the application that can limit the scope of a patent’s coverage. For example, many applicants are unaware that the mere amending of a claim in response to a USPTO rejection can foreclose the opportunity to insist that a word or term covers equivalents of that term. Accordingly, a competitor may avoid infringement, in some cases, by simply using a common substitute for a part. For example, since the invention of the device, claimed below, straps of a generally circular cross-section have been invented to use (for among other things) tying cables into bundles. Does this new “strap” #3 operate as an equivalent to the claimed “thin strap of a rectangular cross-section”?
    These and other questions are regularly answered by patent attorneys before, during and after the pendency of a patent application.

1. A fastening means of the pawl and ratchet type having a two-piece construction comprising:
(a) A retainer having
(i) an upper body of generally rectangular cross-section open on one long side and having the two short sides as side walls, the remaining long side being a back wall such that the walls define a channel,
(ii) a pawl located in the open side of said upper body having a tip at one end for engagement with a ratchet and a base portion at its other end, said pawl being flexibly attached to said side walls at a point spaced apart from its ends and at such an angle that depression of the base portion of said pawl allows clearance of said tip from said channel, and
(iii) a flat base attached to said upper body and having a passage conforming to the shape of said channel, and
(b) A relatively flat, thin strap of a rectangular cross-section separate from said retainer having
(iv) a loop at one end of said strap and a tip at the other end of said strap, and
(v) said ratchet formed by a series of transversely disposed, angular teeth along a portion of the length of said strap;
whereby introduction of said strap into said channel displaces the tip of said pawl which allows passage of said strap in one direction only and retains said strap until the base portion of said pawl is depressed toward said strap, releasing engagement of the tip of said pawl with said ratchet and allowing removal of said strap from said retainer.

  In no particular order, you should have answers for each of the following questions concerning your operations. If you do not, then you should consider talking with your intellectual property attorney to see that all correctly handled.

• Have you paid outstanding notices of allowances?
• Are all maintenance fees that are due paid?
• If you operate a U.S. Patent and Trademark (USPTO) deposit account, is there sufficient funds to cover a utility patent filing?
• Are all domain names renewals due in the next 3 months paid or on auto-renew?
• Are all USPTO actions docketted?
• Have you set a budget to account for IP spending, including assertions, in the next year?
• Are all R&D tax credits documented?
• Do you have an attorney assigned to follow-up on provisional patent applications at least 3 months before the anniversary dates?
• Which U.S. utility patent applications filed in 2009 are to be filed in foriegn jurisdictions in 2010?
• Do you have a patent committee meeting scheduled for the first quarter?
• Has your small-entity status changed or is it likely to change in the next 6 months?
• Has your attorney received responses to all open issues that are over two months old from your staff?
• Have you paid all overdue bills, and has your attorney promptly provided a detailed bill for services?

1) I have a great idea. The Patent Office has to allow it.

The U.S. Patent and Trademark Office (USPTO) is staffed largely by engineers (known as Patent Examiners) who are instructed to protect the citizenry from the abuses of monopolies. The USPTO is arranged to be an adversary to the patents, in general. Because the typical Patent Examiner is not a lawyer, but is expected to apply the law, they are generally suspicious of an applicant’s lawyers. Accordingly, their general approach is virtually guaranteed to force an applicant to obtain patent claims that are much narrower than first requested. In short, the Examiners make an applicant argue each and every claim for suitability concerning, for example, novelty and non-obviousness.

2) I need to place every possible argument into my appeal brief.

The application process is long and has many detours along the road to obtaining a granted patent. One process used to work-around unreasonable Patent Examiners is to have your patent application reviewed by the Board of Patent Appeals and Interferences (the Board). The Board decides disputes as to patentability by having panels of judges decide issues concerning the claims. Frequently, multiple issues can be argued related to each claim. Given that the average number of claims disputed is about 20, and you can see there is a possibility for 50+ arguments in an appeal brief. The challenge is to separate the serious arguments from the flaky. Just because an argument can be made, does not mean the argument should be made. Accordingly, the quickest way to get a Board judge to develop a pattern for affirming the Examiner is to inflate your appeal brief with useless arguments.

3) My application fees pay for the whole process of getting a patent. I should not have to pay anything else for the life of my patent.

Application fees pay for less than half the USPTO’s budget, the remainder comes from extending the prosecution/deliberation of the patent through continuations and appeals or from the maintenance fees paid for granted patents. In addition, Congress routinely uses patent fees to support the general government budget.

4) I should hear back from the Patent Office in a reasonable amount of time whether my patent application is granted.

The average patent granted today has been pending in the Patent Office for 35 months, or 3 years, give or take a month. It is believed, in spite of a 5% reduction in patent filings in 2009, that the pendency will only increase for patents filed today.

5) My own publications won’t be used as prior art against me.

Your own publications frequently bar you from obtaining patents in non-U.S. jurisdictions. However, you have a grace period of one year to file a patent application if the inventor publishes the details of the invention. After that, your publication will be used to show that your invention is not new or that it is obvious. In addition, statements made, in your patent application itself, can operate as prior art. When in doubt what to write and publish, its always best to consult a patent attorney.

6) If I write 20 claims, at least one of them will be allowable.

Because of the Patent Office’s policy of rejecting all claims, you will have to fight for each of the claims to be issued. Even the dependent claims, which are the most detailed in the application, will likely be rejected, sometimes after multiple written discussions with the Patent Examiner. As a last resort, an applicant can get these claims allowed by amending them. Nevertheless, the claims that are eventually granted, in 9 cases out of 10, will be changed from the form they had at application time.

7) More claims are better.

This myth is partially true. More claims give you more chances to get allowance without the need to amend a claim. However, the USPTO’s production goals give Examiners only one ‘count’ credit for actions relating to a case, no matter the number of claims involved. This policy creates an incentive to restrict or split cases into multiple continuations. When the USPTO requires a restriction, the applicant will have to pay a continuation fee. Moreover, the applicant’s attorney will have to spend proportionally more time on the ‘sister’ cases. In short, you will improve your chances of getting allowed claims at the expense of higher filing fees and higher attorney fees.

8 ) Once I get a granted patent, I’ll earn money by selling or licensing the patent.

One in three products earns a profit for the company making them. One in three patents actually gets manufactured or used. Every year, hundreds of patents are offered for sale in the Official Gazette. Fewer than 10% ever change hands in this manner. The truth is, if you don’t build your invention, you have a small chance to convert the granted patent into cash. Nevertheless, the minority of patents that are connected to profitable products has an enormous range of profitability. For example, patents on profitable, safe pharmaceuticals can be worth upwards of $10 million. Some patent lawsuits have awarded damages (which can include punitive damages) in excess of $1 billion. In the end, most companies diffuse the risk of obtaining patents by filing multiple patent applications so that in the aggregate, the earnings/protections of having a patent portfolio more than pay for the R&D and legal expenses.

9) If I get a patent, then I have the right to make, use, and sell the invention.

The patent grant is nothing more than an entitlement to exclude others. The USPTO asserts neither that the invention is ‘good’, nor that products built to its specification avoid other, more basic, patents. Since multiple patents may cover complex electromechanical devices, such a device may have embedded within it licensing fees to multiple companies.

10) It’s cheaper to file a provisional patent first.

A provisional patent application is a way to show that you have invented ‘something’ early, without all the formalities of a non-provisional patent application. In order to eventually seek a non-provisional patent application, the applicant will still have to file a specification that supports patent claims. To do this second step requires a second fee be paid to the U.S. Patent and Trademark Office. Because some re-work is required, in addition to intermediate counseling and reminding, the overall cost of a patent granted using a provisional patent application will be more expensive than the traditional route of filing a non-provisional patent application on the same day the provisional patent application would have been filed.

The above myths show that the patent process is fraught with peril, and that patents granted through the process may not earn the applicant much money. Nevertheless, patents granted create a number of opportunities for the applicant. First, the applicant has a property right that can be licensed, sold, or pledged as security to obtain loans or capital. Second, the applicant has the right to mark products sold as having an applicable patent – which can boost marketing while discouraging competitors. Third, the applicant may litigate to seek damages, which can be tripled under the right circumstances. Because the pendency of patents extends through the business cycle, the best time to start obtaining patents is at the bottom of the cycle so that when demand roars back, your competitors are not operating in your protected field.

  Initially a patent application is passed through a formality review to make sure that the minimum parts are in the package. Some of the preliminary checks can include an identification of the inventors, that all signatures are present, that the application is in the English language, fees have been paid, and the like. If the minimum requirements for obtaining a filing date have occurred, the United States Patent and trademark Office (USPTO) returns a filing receipt. The filing receipt acknowledges your filing, provides an application serial number, recites the names of the inventors, and optionally, will provide the applicant a license to file foreign counter-parts to the patent application.

  If the patent application satisfies the initial formality checks, then it will be assigned an art unit, and placed into a queue for an Examiner to act upon. In my experience, the time for the Examiner to act is between six months and three and a half years, though I’ve heard reports of the first action being longer. Accordingly, the next step will likely be a notice of the estimate the USPTO thinks it will be when the case receives an office action.

  Next, the USPTO will transmit a notice that your patent application has been published. This step occurs about 18 months after the initial filing. Next you will probably receive a office action — which laypeople frequently describe as a rejection letter. At this stage you enter into negotiations by corresponding with the Examiner. These negotiations can be as short as six months, but will more likely take a couple of years.

  If all goes well, you will receive a notice of allowance. At that time, you have a three month window to pay the patent issuance fee, which will keep the patent in force for four years (depending on the applicable law when the patent was filed). After you pay your issuance fee. You will wait two to three months for the goverment printing office. At that time, two things occur. First, you will receive a bound copy of your granted patent with signature of the commissioner of the USPTO, red ribbon, and gold seal. Second, your patent will be published to many US libraries, on the web, and elsewhere.

    A new commissioner of the Patent Office is in town, and he is adjusting the system by which Examiner’s are compensated and motivated. In particular, Commissioner David Kappos is urging that the Patent Examiner’s Association ratify a new plan that places emphasis on early quality examination of patent applications, while de-emphasizing the incentives for an Examiner to drag out prosecution into multiple continuations. The new system is to replace the old ‘count system’, which rewarded an Examiner for every first office action in an equal manner, even though it is widely acknowledged that the actions after a continuation are predominately repeated analysis of the initial office action. In addition, the Commissioner is encouraging the Examiners to talk to the applicants before taking the usual ‘shotgun’ approach of rejecting al claims, which is the standard practice in the USPTO today.

    Accordingly, the new count system, if ratified, will permit a more rational interpretation of the applicant’s invention and the prior art that the Examiner asserts against the invention. It is widely believed that the combination of talking to the applicant and having more time to review prior art will let the patent examining corps get it right the first time. This will be in contrast with the current practice that all too frequently distorts and extends the plain meaning of the claims and prior art in order to ostensibly match features in the claims.

    Secondarily, the USPTO is proposing to raise filing fees in the coming months to cover budget shortfalls. Expect the increase in a $1090 large entity filing fee to increase about $165. The extra fees will be used to train Examiners and provide other performance enhancing activities.

    What does this mean to inventors who are considering a patent application? First, it means that your application will receive a more professional review at the first office action. Importantly, your attorney will be able to tutor the examiner in the technology used so that irrelevant prior art is screened out early and without the need to produce lengthy and expensive written arguments. Secondly, today’s relatively low fees, coupled with tomorrow’s increased fairness in examination will likely lead to more patent claims allowed for the same low prices of the application, at least until the application fees are increased. Importantly, it is expected that the protracted and repeated rejections common today will be converted to early allowances without need to resort to continuations. Third, the fewer papers that are in a granted patent’s prosecution history means that there are fewer procedural pitfalls that will later be used against the applicant should litigation develop.

    In summary, there has never been a better time to apply for a patent application.

    Treehugger, a blog concerning use of green technology, reported Sunday that Toyota is the target of a patent lawsuit from patent-holder, Paice LLC. Treehugger calculates/suggests that licensing on this or similar patents may cost $25 for each hybrid car sold by Toyota. Treehugger makes the error in suggesting that a mere ownership of a patent is not sufficient to justify paying a patent holder for use of technology that infringes the patent. Rather, Treehugger suggests that the patent-holder is at fault for not implementing the technology based on the patent.

    There are several things wrong with this statement. First, there is no prerequisite, in current law, that in order to sue for damages/royalties, the patent holder also has to have performed any technology that the patent covers. Second, lets say there was a prerequisite that the patent holder did implement the technology, how would one determine that the technology is implemented?

Would the patent holder have to implement one instance per patent, or one instance per patent claim?

Would the patent holder have to actually sell the instance?

Who would operate the device to prove it works?

How long would such a device have to work, 5 minutes, 5 years?

If the device needed to be sold, then is there a requirement that a profit be made, and who would go through the fact intensive debate of whether profit occurred?

    As you can see, it quickly becomes a very complicated fact issue to determine if the suing patent holder actually practiced the invention — thus jacking up the costs of litigation.

    Now, lets look at this issue another way. Lets say ACME corp makes rocket-powered roller-skates, but also obtains two patents on propeller-powered roller-skates and jet-turbine-powered roller-skates as a kind of ‘backup plan’ in case the rocket-powered market plan falls through. Are you saying that in addition to the expense of producing and patenting the high-level designs of the alternate roller skate technology as well as building working prototypes (perhaps 10 or more per patent), only then does ACME have the right to sue infringers in these alternate areas? So basically, to operate as a business, and keep your options open in other areas, the business has to enormously expand their R&D so that they can take the chance that their patent lawsuit can catch the infringer?

    OK, lets say that the above-described changes occur. How much more expensive do you suppose that patent litigation will become? And if the litigation becomes more expensive, wouldn’t you expect that cost to be passed along to those found to infringe? In other words, royalties for the technology might double? It seems to me, that the big winners in this arrangement are going to be engineers and patent attorneys. The losers are going to be the public that depends on new technology to get practical things done.

    At the end of the day, under current law, no profitable enterprise is shut down (that I’m aware of), since usually there is sufficient profit (or likely future profits) that the royalty can be absorbed into the cost structure of the sold product. In particular, many companies can ‘borrow’ from the patented technologies and set aside a pool of money to pay when the infringement suit eventually shows up. In addition, were it not for the current incentives in the U.S. patent system, there might not be as much disclosure of technologies in patent applications, and accordingly, less patents to ‘borrow’ from. In other words, innovation and the exploitation of that innovation might occur at a slower rate without the benefit of published new technologies.

    On August 24, 2009, the USPTO released its latest interim guidance on patent subject matter elegibility. The guidance is provided while the patent world waits for the Supreme Court to finally decide Bilski. The USPTO says that this guidance supersedes MPEP 2106(IV), 2106.01 and 2106.02.
Key points:
    To be statutory, the application must fall within one of the four statutory categories and not within a judicially recognized exception. The four statutory categories include Machine, Manufacture, Composition of matter and Process. A process is further described as an act, or a series of acts or steps that are tied to a particular machine or apparatus or transform a particular article into a different state or thing.
    The USPTO gives several examples of non-statutory subject matter:
1. Transitory forms of signal transmission
2. A legal contractual agreement between two parties
3. A computer program per se.

    A claim that covers both statutory and non-statutory embodiments (under the broadest reasonable interpretation of the claim when read in light of the specification and in view of one skilled in the art) embraces subject matter that is not eligible for patent protection and therefore is directed to non-statutory subject matter.

Judicially recognized exceptions:
    Abstract ideas, mental processes or substantially all practical uses (pre-emption) of a law of nature or a natural phenomenon.

An exception to the exception:
    If a judicial exception is recited in the claim, it must be determined if the judicially excepted subject matter has been practically applied in the product.

    The USPTO further explains:

    Descriptive material should be evaluated to determine if the material has a functional relationship to the underlying structure in order to evaluate whether it creates a patentable distinction over the prior art or whether it is merely non-functional descriptive material that creates no patentable distinction. For example, printed matter on an object or mere data (e.g., music) stored in a memory is typically non-functional descriptive material that would not create a patentable distinction over the prior art. Conversely, a printed circuit board or a computer programmed with executable instructions is typically construed as a base structure combined with functional descriptive material that could create a patentable distinction over the prior art.
…
    As another example, a claim to a non-transitory, tangible computer readable storage medium per se that possesses structural limitations under the broadest reasonable interpretation standard to qualify as a manufacture would be patent-eligible subjectmatter.

…
    A “field-of-use” limitation does not impose actual boundaries on the scope of the claimed invention. A field-of-use limitation merely indicates that the method is for use in a particular environment, such as “for use with a machine” or “for transforming an article”, which would not require that the machine implement the method or that the steps of the method cause the article to transform. A field-of-use limitation does not impose a meaningful limit on the claimed invention.
   Insignificant “extra-solution” activity means activity that is not central to the purpose of the method invented by the applicant. For example, gathering data to use in the method when all applications of the method would require some form of data gathering would not impose a meaningful limit on the claim.

[The Examiner is to s]tate on the record why the machine or article is not “particular”.

COROLLARIES
    (1) Confirm that the use of the particular machine or the transformation of the particular article imposes a meaningful limitation on the claim’s scope by, for example, being present in more than a mere field-of-use limitation. (2) Confirm that the use of the particular machine or the transformation of the particular article involves more than insignificant extra-solution activity.

    The protection of innovated products organized an executed by data processing systems has been an area receiving special attention by the USPTO. Artful drafting of applications to specifically highlight the machine or otherwise show transformation in the physical world are crucial to getting a patent by the most direct route possible. There are many traps for the unwary patent applicant. Given the current flux in this area, it is more important than ever to partner with a patent professional to draft claims that meet the changing criteria used by the USPTO.

    Periodically I post on Twitter.com decisions of the BPAI. Since mid-August, here are selected decisions that generally concern computer implemented decisions. The decisions are selected according toward my bias to locate decisions that show the Applicant having meritorious arguments. Those of you who follow me on Twitter (Jugglenaut; QuickInvent) know that I have some pet abbreviations that I use. Some are:

Exmr: Examiner
p/a: prior art
2: to
1s, 2d: first, second, etc.
w/: with
101: 35 U.S.C. § 101
102: 35 U.S.C. § 102
103: 35 U.S.C. § 103
112 ¶ 2: 35 U.S.C. § 112 paragraph 2
112 ¶ 6: 35 U.S.C. § 112 paragraph 6

    Postings are reverse chronological.
#BPAI #Bilski reverses. No machine,&fails2 transform: These data values R neither phy obj nor do data rep’t physical obj http://su.pr/21kNrp
#BPAI reverses. Claimed “height-sensing pad electrically isolated from die circuitry” not taught by ‘detection pads’ http://su.pr/2feGvE
#BPAI reverses, after reviewing spec, interprets claimed “broadcast encryption” as using media key block. http://su.pr/1bubuK
#BPAI P/A ‘and’ means both: “at least one key table containing sets of keys and an associated function w/ each key.” http://su.pr/2dJSfK
#BPAI P/A is not teaching multiple data stores, each having an agent & a profile representing configuration information http://su.pr/1JLmdh
#BPAI reverses: p/a is not teaching “a … module located _below_ a 1st TCP module in a first operating system” http://su.pr/33GUHQ
Examiner set 3rd office action as FINAL.Applicant wanted 3rd action 2B non-final.Petitionable matter not sorted by #BPAI http://su.pr/1MALKn
#BPAI Reverses as2 103, affirms as 2 112¶2 References do not teach combined primary signal, interference signal & noise http://su.pr/18770
#BPAI reverses examiner on a slew of claims mainly because p/a teaching of ‘flexible’ is not teaching claim of ‘rigid’ http://su.pr/6YbhAu
#BPAI Affirms as to 103, claimed “client system” is broadly interpreted and found in p/a http://su.pr/1mUQjL
#BPAI detcting b/w isn’t “calculating a volume of a given coloring agent used per page based on the number of dots” http://su.pr/17X7ib
#BPAI motivation to combine lacks “articulated reasoning with some rational underpinning” in 1 of many claims http://su.pr/2YYl64
#BPAI Examiner missed describing a feature in 103 “the entire [reference] does not even mention any type of [feature] http://su.pr/2YYl64
#BPAI “computer program product” claims survive Examiner’s Bilski rejection http://su.pr/2bnAHH
#BPAI #Bilski affirms Examiner rejecting claim a) insignificant extra-solution activity and b) field of use limitation. http://su.pr/2z4ISz
#BPAI reverses examiner as to claim that relies on section 112 ¶ 6 “means plus function” form http://su.pr/2OdXJt
#BPAI Exmr needs 2compare threshlds 2teach: 1st transistor being operable @ a gate threshold voltage > 2d transistor http://su.pr/28d5dp
#BPAI reverses #patent Examiner stating an apparatus used in place of a pump is not a “pump” as claimed Application http://su.pr/2SAwwT
#BPAI Examiner errs2call limitation a “statement of use. Claim held allowable “internal flow path providing _only_ path http://su.pr/1EL9CK
#BPAI Examiner errs by grouping claims that have different scopes. Reversed as 2 sensor array _could_ B mounted on frame http://su.pr/8GiOjj
#bpai reverses: mobile node moving 2a foreign site is not claimed “tunneling of packets BT mobile device and home agent” http://su.pr/2maAUq
#bpai reverses “the antenna enclosure having a clamping mechanism” isnt taught by laptop having a clamp 2 attach antenna http://su.pr/1Ssdbq

    In June 1995 the patent term for which a patent is in force changed from 17 years from date of grant to 20 years from date of application for a patent. Patent maintenance fees are now due 3, 7, and 11 years after the date of issue, during payment windows that extend for six months after the anniversary dates.

Surcharges can be paid during a grace period of six months following the expiration of the payment window. In extreme situations (e.g. showing of failure to pay maintenance fee unavoidable), and with a special petition, a fee can be paid as late as 2 years after the extended period to pay the maintenance fee. For more details, see (37 CFR § 1.378)