USPTO gives legal advice, and it’s flat wrong

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When I was first in practice, you could purchase up to three months of extensions of time to pay an Issue Fee.  That ended around a decade ago.  For the past decade, the situation has been that if you are as little as one day late in paying your Issue Fee, the application will go abandoned.  You would then be faced with the prospect of having to pay a USPTO fee of $2100 (or $840, or $420) along with a Petition to Revive, to overcome the abandonment.

With this in mind, here is a screen shot from Patent Center in an application that has received a Notice of Allowance.  For this allowed US patent application, the legal advice from the USPTO is:

Payment of fees during this stage of the application process is optional, but failure to pay fees in a timely manner may cause delays in the processing of your application.

This legal advice is, as any experienced practitioner knows, flatly false.  In no way is the payment of the Issue Fee “optional”.  And the consequence of failing to pay the Issue Fee “in a timely manner” does not merely “cause delays in the processing” — it abandons the application.

For an experienced practitioner, this wrong legal advice probably routinely gets ignored.  But in recent years the USPTO has done lots of outreach urging inventors to file pro se.  It is surely only a matter of time before some pro se inventor believes this wrong advice and ends up with no patent at all.

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