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Continuation Drafter
Continuation practice · Tier D

One year, not two, before you must explain the delay

Unintentional-delay petitions

A delayed benefit claim filed more than a year late now needs a substantive account of the whole delay, not just the statement that it was unintentional, and it carries the higher fee.

How to read the ledger below. Each numbered point carries the kind of evidence behind it. ESTABLISHED is stated in the authority's own text, with a locator. IMPLEMENTED is the rule as the authority actually applied it. OBSERVED is carried by a source outside this one. ASSUMED is the drafter's inference, flagged as such and not the authority speaking. Quotations are checked against a cached copy of the primary source by script.

In one paragraph

The USPTO adopted a final rule published at 91 Federal Register 37826 on 24 June 2026 and effective 13 August 2026, applicable to any new petition filed after that date. It shortened from 2 years to 1 year the delay after which a petition based on unintentional delay must include an additional explanation of the circumstances surrounding the delay establishing that the entire delay was unintentional, on top of the statement the rules already require. The four petition types covered are reviving an abandoned application, accepting a delayed maintenance fee payment, accepting a delayed priority or benefit claim, and excusing a failure to act within a Hague Agreement time limit. The higher petition fee threshold moved to 1 year to match while the fee rates stayed the same, the office may still ask for more information at any delay where there is a question, and the rule notes that an inaccurate statement of unintentional delay has led to patents being held unenforceable for inequitable conduct.

Reader summary

Since 2020 the office had said it would ask for additional information when a petition based on unintentional delay arrived more than two years after the triggering event. It reserved the right to revisit that threshold. It has, and the period is now one year.

Four petition types are covered: reviving an abandoned application, accepting a delayed maintenance fee payment, accepting a delayed priority or benefit claim, and excusing a failure to act within a Hague Agreement time limit. The third is the one that matters to a continuation practitioner.

What is required past the one-year mark is not a longer form of the same statement. The office normally accepts the applicant's bare statement that the entire delay was unintentional, relying on the duty of candour. Past a year it wants an explanation of the circumstances surrounding the delay that establishes the whole delay was unintentional, in addition to the statement the rules already require.

The petition fee threshold moved with it. The higher fee under 37 CFR 1.17(m)(1) now applies at one year rather than two. The amounts themselves did not change.

Two things are worth carrying beyond the mechanics. The one-year period is a floor, not a ceiling: the office reserves the right to ask for more whenever there is a question, at any delay. And the rule cites a Federal Circuit decision holding patents unenforceable for inequitable conduct where an inappropriate unintentional-delay statement was submitted. This is a filing where a careless statement has been held to cost the patent.

Why this matters when you are drafting

The benefit claim is the continuation's lifeline and this rule governs fixing it late. Claim 5. Where a benefit claim was omitted or defective and is being added by petition, the one-year mark now changes what the petition has to contain.

Docket the one-year date, not the two-year date. Claim 1. The rule applies to petitions filed after 13 August 2026 regardless of when the underlying delay began, so a delay already running is measured against the new period from the day a petition is filed.

The additional explanation is a different document from the statement. Claims 6 and 7. It is a substantive account of the circumstances, on the record, and it is additive rather than a replacement.

"Entire delay" is the operative phrase and it is unforgiving. Claim 8. A period during which a decision not to act was made, anywhere in the interval, is not unintentional delay, and the petition cannot be granted on a partial showing.

Treat the statement as an enforceability event. Claim 9. The rule itself points to patents held unenforceable over an inappropriate statement of unintentional delay. This is one of the few filings where a routine sentence has that consequence, and it belongs alongside the enforceability records in this tier.

Being inside a year is not safety. Claim 12. The office may ask at any delay where there is a question.

Add the cost to the late-continuation arithmetic. Claim 15. This tier's other rule makes a late benefit claim expensive on its own terms; this one raises the price and the burden of fixing one late.

What the authority establishes

  1. [ESTABLISHED, the effective date and its scope] "This rule is effective August 13," 2026, "and will be applicable to any new petition filed after the effective date." (91 FR 37826.) It keys to when the petition is filed, not to when the delay began.
  1. [ESTABLISHED, the change in one sentence] "The USPTO has decided to shorten the two-year period for requiring additional information to one year." (91 FR 37827.)
  1. [ESTABLISHED, what triggers the clock] The office will now require additional information when the petition is filed "more than one year after the date the application became abandoned, the patent expired, a priority or benefit claim was due, or the applicable prescribed time limit under the Hague Agreement expired." (91 FR 37828.)
  1. [ESTABLISHED, the reason given] "If the period of delay is more than one year, there is a sufficient concern that the entire delay may not be unintentional and thus warrant a requirement for an additional explanation of the circumstances surrounding the delay." (91 FR 37828.)
  1. [ESTABLISHED, the four petition types, and the third is the continuation one] The requirement reaches a petition to revive under 37 CFR 1.137, to accept a delayed maintenance fee under 37 CFR 1.378, "any applicant or patent owner filing a petition to accept a delayed priority or benefit claim under 37 CFR 1.55(e) or 1.78(c) and (e)" (91 FR 37828.), and a petition under 37 CFR 1.1051 for a Hague time limit.
  1. [ESTABLISHED, what must be provided, and it is additive] Such a filer "must provide an additional explanation of the circumstances surrounding the delay that establishes that the entire delay was unintentional." (91 FR 37828.) And "This requirement is in addition to the requirement to provide a statement that the entire delay was unintentional" in the existing rules. (91 FR 37828.)
  1. [ESTABLISHED, what the normal practice is, which is what changes past a year] "The USPTO usually relies upon the applicant's duty of candor and good faith and accepts the statement that the entire delay was unintentional without requiring further information because the applicant or patentee is obligated under 37 CFR 11.18 to inquire into the underlying facts and circumstances when providing this statement to the USPTO." (91 FR 37828.)
  1. [ESTABLISHED, the standard is the ENTIRE delay] "An applicant or patentee cannot meet the "unintentional delay" standard in 37 CFR 1.55(e), 1.78(c) and (e), 1.137(a), 1.378(b), or 1.1051 if the entire delay is not unintentional." (91 FR 37828.) Any intentional interval anywhere in the period defeats it.
  1. [ESTABLISHED, and this is the sentence with real teeth] "Providing an inaccurate statement that the entire delay was unintentional may have an adverse effect when attempting to enforce the patent." (91 FR 37828.) The rule cites In re Rembrandt Technologies, where "patents held unenforceable due to a finding of inequitable conduct in submitting an inappropriate statement that the delay was unintentional" (91 FR 37828.).
  1. [ESTABLISHED, the fee threshold moved to match] "the rules are revised to clarify that the fee under 37 CFR 1.17(m)(1) will apply when the petition is filed more than one year after the date when the required action was due." (91 FR 37829.) And "The fee rates in 37 CFR 1.17(m) will remain the same." (91 FR 37829.) The threshold changed; the amounts did not.
  1. [IMPLEMENTED, the codified change] "Section 1.17(m)(1) now applies when the petition is filed more than one year after the date when the required action was due." (91 FR 37829.) Previously two years.
  1. [ESTABLISHED, the one-year period is a floor and not a ceiling] "Separate and apart from the one-year period in this notice, the USPTO may require additional information whenever there is a question as to whether the delay was unintentional." (91 FR 37829.) A petition filed inside a year is not immune.
  1. [ESTABLISHED, why the fee threshold moved with the information requirement] Because the evidentiary requirements "will increase, as well as the cost to review and treat these petitions" (91 FR 37829.), the office is "changing the threshold for imposing the higher petition fee to recover the additional costs associated with the change in practice set forth in this notice." (91 FR 37829.)
  1. [ESTABLISHED, how it was issued, which bears on how it can be challenged] The change "does not change the substantive criteria of patentability" (91 FR 37829.), so the office treated it as a rule of agency practice and procedure or an interpretive rule and issued it without notice and comment. (91 FR 37829.)
  1. [ASSUMED, drafter's inference, flagged as such] Read with uspto-continuing-application-fee, a delayed benefit claim in an old family can now attract three things at once: this rule's additional-information burden, the higher petition fee at the new one-year threshold, and the continuing application fee that the other rule makes payable in addition to the petition fee. Neither rule discusses the other; the inference is from claim 10 here read against claim 10 there.

Quotations, verified against the source

All from the USPTO final rule, never from the unrelated document sharing its first page. Page locators are Federal Register pages of volume 91, computed from the running citation line.

  • "This rule is effective August 13," (91 FR 37826.)
  • "and will be applicable to any new petition filed after the effective date." (91 FR 37826.)
  • "The USPTO has decided to shorten the two-year period for requiring additional information to one year." (91 FR 37827.)
  • "more than one year after the date the application became abandoned, the patent expired, a priority or benefit claim was due, or the applicable prescribed time limit under the Hague Agreement expired." (91 FR 37828.)
  • "If the period of delay is more than one year, there is a sufficient concern that the entire delay may not be unintentional and thus warrant a requirement for an additional explanation of the circumstances surrounding the delay." (91 FR 37828.)
  • "The USPTO usually relies upon the applicant's duty of candor and good faith and accepts the statement that the entire delay was unintentional without requiring further information because the applicant or patentee is obligated under 37 CFR 11.18 to inquire into the underlying facts and circumstances when providing this statement to the USPTO." (91 FR 37828.)
  • "An applicant or patentee cannot meet the" (91 FR 37828.)
  • "unintentional delay" (91 FR 37828.)
  • "standard in 37 CFR 1.55(e), 1.78(c) and (e), 1.137(a), 1.378(b), or 1.1051 if the entire delay is not unintentional." (91 FR 37828.)
  • "Providing an inaccurate statement that the entire delay was unintentional may have an adverse effect when attempting to enforce the patent." (91 FR 37828.)
  • "patents held unenforceable due to a finding of inequitable conduct in submitting an inappropriate statement that the delay was unintentional" (91 FR 37828.)
  • "any applicant or patent owner filing a petition to accept a delayed priority or benefit claim under 37 CFR 1.55(e) or 1.78(c) and (e)" (91 FR 37828.)
  • "must provide an additional explanation of the circumstances surrounding the delay that establishes that the entire delay was unintentional." (91 FR 37828.)
  • "This requirement is in addition to the requirement to provide a statement that the entire delay was unintentional" (91 FR 37828.)
  • "will increase, as well as the cost to review and treat these petitions" (91 FR 37829.)
  • "changing the threshold for imposing the higher petition fee to recover the additional costs associated with the change in practice set forth in this notice." (91 FR 37829.)
  • "the rules are revised to clarify that the fee under 37 CFR 1.17(m)(1) will apply when the petition is filed more than one year after the date when the required action was due." (91 FR 37829.)
  • "The fee rates in 37 CFR 1.17(m) will remain the same." (91 FR 37829.)
  • "Section 1.17(m)(1) now applies when the petition is filed more than one year after the date when the required action was due." (91 FR 37829.)
  • "Separate and apart from the one-year period in this notice, the USPTO may require additional information whenever there is a question as to whether the delay was unintentional." (91 FR 37829.)
  • "does not change the substantive criteria of patentability" (91 FR 37829.)

Tensions and open questions

What counts as an adequate additional explanation is not specified. Claim 6 states the requirement and its object. Neither the rule nor anything read here gives a form, a level of detail, or an example, and the manual sections it points to had not been updated when the rule issued.

The rule says the manual will be updated in due course. Until then the operative guidance is this preamble, and a practitioner should expect the manual text to be the more detailed source once revised.

Claim 12 leaves the practical threshold indeterminate. The one-year period tells you when you will certainly be asked, not when you will not be.

The interaction with the continuing application fee is not addressed by either rule. Claim 15 is an inference across two documents, and neither cross-references the other.

Procedural issuance is asserted, not adjudicated. Claim 14 records the office's own characterization and the authorities it cites for it. Whether a court would agree is outside this record.

What this record does and does not cover

The background, the change from two years to one, the four covered petition types, the additional-information requirement, the fee-threshold change and the Administrative Procedure Act discussion were read end to end.

What was NOT read closely, and is therefore outside what this record can support: the remaining rulemaking certifications and the amendatory text as codified. This record says nothing about what a sufficient explanation of delay looks like in practice, because the rule does not say and the manual had not been updated. In re Rembrandt Technologies is known here only through this rule's parenthetical and has no record in this corpus.

Currency

This record was verified against its primary source on 2026-08-15. That is a fidelity check: the quotations, locators and attribution are accurate to that source. Whether the authority has since been narrowed, distinguished, abrogated or reversed has not been checked here. Confirm it still stands before relying on it.