35 U.S.C. § 133
Time for prosecuting application
Upon failure of the applicant to prosecute the application within six months after any action therein, of which notice has been given or mailed to the applicant, or within such shorter time, not less than thirty days, as fixed by the Director in such action, the application shall be regarded as abandoned by the parties thereto.
Notes of Decisions
Cited in 42
cases (1 in the last 5 years), 1955–2024 · leading case: Jerold B. Smith & the Cardinal Corp. v. Gerald J. Mossinghoff, Comm'r of Patents & Trademarks, 671 F.2d 533 (D.C. Cir. 1982).
Jerold B. Smith & the Cardinal Corp. v. Gerald J. Mossinghoff, Comm'r of Patents & Trademarks, 671 F.2d 533 (D.C. Cir. 1982). “The basis of the PTO’s determination was that Smith had not provided “sufficient grounds for establishing unavoidable delay in prosecuting [his] application within the meaning of 35 U.S.C. § 133 and 37 CFR 1.137.” 35 U.S.”
Struthers Pat. Corp. v. Nestle Co., Inc., 558 F. Supp. 747 (D.N.J. 1981). “35 U.S.C. § 133 provides that upon failure of applicant to prosecute the application within six months after any action therein, or in such shorter time (not less than thirty days) as the Commissioner may fix, “the application shall be regarded as abandoned by the parties…”
Ralph D. Ray v. Bruce Lehman, Comm'r of Patents & Trademarks, 55 F.3d 606 (Fed. Cir. 1995). “The latter provision is entitled “Time for Prosecuting Application” and sets forth that: Upon failure of the applicant to prosecute the application within six months after any action therein, of which notice has been given or mailed to the applicant, or within such shorter time,…”
Aristocrat Tech. Australia PTY Ltd. v. Int'l Game Tech. & IGT, 491 F. Supp. 2d 916 (N.D. Cal. 2007). “§ 371 ; (2) failing to timely file a response to the PTO’s June 5, 2001 notice reaffirming abandonment under 35 U.S.C. § 133 ; and (3) failing to make an adequate “showing” in their Petition to Revive that their delays were “unavoidable,” as specifically required under Sections…”
Kamdem-Ouaffo v. PepsiCo, Inc., 160 F. Supp. 3d 553 (S.D.N.Y. 2016). “as fixed by the Director in such action, the application shall be regarded as abandoned by the parties thereto.”). As ScentSational Defendants note, “[i]t is well-established that this Court cannot correct inventorship on a patent application, particularly when the application’…”
In Re Stephen B. Bogese II, 303 F.3d 1362 (Fed. Cir. 2002). “Under 35 U.S.C. § 133 and 37 C.F.R. § 1.134 , Bogese was required to file his file wrapper continuation application within six months of the final rejection of the claims in the parent application to preserve the priority date of the parent application.”
Shila Morganroth v. Donald J. Quigg, Honorable, Comm'r of Patents & Trademarks, 885 F.2d 843 (Fed. Cir. 1989). “At one time, that court held that the Commissioner’s refusal to revive a patent application “is not subject to judicial review.”
Aristocrat Tech. Australia Pty Ltd. v. Int'l Game Tech. & IGT, 543 F.3d 657 (Fed. Cir. 2008). “See 35 U.S.C. § 133 (“Upon failure of the applicant to prosecute the application within six months .”
Haines v. Quigg, 673 F. Supp. 314 (N.D. Ind. 1987). “” A few weeks after the opinion was released, Haines filed a second petition to revive the first application. This petition was also denied.”
Arqule, Inc. v. Kappos, 793 F. Supp. 2d 214 (D.D.C. 2011). “35 U.S.C. § 133 . This deadline is referred to by the government as “timeliness,” and a failure by the applicant to meet this deadline will result in abandonment of the application.”
Enzo Therapeutics, Inc. v. Yeda Rsch. & Dev. Co., 477 F. Supp. 2d 699 (E.D. Va. 2007). “on April 28, 1984, as provided in 35 U.S.C. § 133 : Upon failure of the applicant to prosecute the application within six months after any action therein, of which notice has been given or mailed to the applicant, or within such shorter time, not less than thirty days, as fixed…”
New South Indus., Inc. v. Apache Grounding Corp., 666 F. Supp. 1067 (M.D. Tenn. 1987). “” On November 17, 1977, the examiner rejected the apparatus claim and specified, pursuant to 35 U.S.C. § 133 , that there would be a shortened statutory response period of 90 days.”
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