If an applicant has proof that an application was inadvertently abandoned due to a USPTO error, an applicant may file a request to reinstate the application, instead of a formal petition to revive. There is no fee for a request for reinstatement. To ensure proper routing and processing, the Office prefers that the request be filed electronically. In TEAS, the Request for Reinstatement form can be accessed by clicking on the link entitled "Petition Forms" at http://www.uspto.gov.

The following are examples of situations where the USPTO may reinstate an application that was held abandoned for failure to timely file a statement of use or response to an Office action or that was held abandoned in total after a partial refusal or requirement:

1. (1) The applicant presents proof that a response to an Office action, statement of use, or request for extension of time to file a statement of use was timely filed through TEAS, in the form of a copy of a TEAS "Success" page confirming receipt of the application (see TMEP §303.02(a)) or a copy of an e-mail confirmation issued by the USPTO that includes the date of receipt and a summary of the TEAS submission.
2. (2) There is an image of the timely filed response, statement of use, or extension request in TICRS.
3. (3) The timely filed document is found in the USPTO.
4. (4) The applicant supplies a copy of the document and proof that it was timely mailed to the USPTO in accordance with the certificate of mailing requirements of 37 C.F.R. §2.197 (for the specific requirements for providing proof, see TMEP §305.02(f)).
5. (5) The applicant supplies a copy of the document and proof that it was timely transmitted to the USPTO by fax in accordance with the certificate of facsimile transmission requirements of 37 C.F.R. §2.197 (for the specific requirements for providing proof, seeTMEP §306.05(d)).
6. (6) The applicant presents proof of actual receipt in the USPTO in the form of a return postcard showing a timely USPTO date stamp or label, on which the applicant specifically refers to the document at issue (see TMEP §303.02(c)).
7. (7) The applicant presents proof of actual receipt in the USPTO in the form of evidence that a USPTO employee signed for or acknowledged the envelope (e.g., a certified mail receipt that bears a USPTO date stamp or label, or the signature of a USPTO employee), accompanied by an affidavit or declaration under 37 C.F.R. §2.20 attesting to the contents of the envelope.
8. (8) The document that became lost was accompanied by a fee, and there is proof that the USPTO processed the fee (e.g., a cancelled check). The request for reinstatement must include an affidavit or declaration under 37 C.F.R. §2.20 that attests to the contents of the filing.
9. (9) The USPTO sent an Office action or notice of allowance to the wrong address due to a USPTO error, i.e., the USPTO either entered the correspondence address incorrectly or failed to enter a proper notice of change of address filed before the issuance date of the action or notice. See TMEP §609.03 regarding the applicant’s duty to notify the USPTO when the correspondence address changes.
10. (10) An application is abandoned in total for failure to respond to an Office action or for an incomplete response to a final Office action when the Office action states that the refusal or requirement applies to only certain goods, services, and/or classes. See TMEP §718.02(a).
11. (11) An application is abandoned in total after a refusal or requirement that applies to only certain goods, services, and/or classes is upheld on appeal or when the applicant withdraws or fails to prosecute an appeal of a refusal or requirement that applies to only certain goods, services, and/or classes to the Board. See TMEP §718.02(a).

A request for reinstatement must be filed within two months of the issuance date of the notice of abandonment or, if the applicant has not received a notice of abandonment, within two months of the date the applicant had actual knowledge that the application was abandoned. 37 C.F.R. §2.146(d).

If the applicant did not receive a notice of abandonment, the applicant must have been duly diligent in monitoring the status of the application, or the request for reinstatement may be denied. To be duly diligent, the applicant must check the status of a pending application every six months between the filing date of the application and issuance of a registration. 37 C.F.R. §2.146(i)(1); TMEP §1705.05.

When an application is reinstated, a computer-generated notice of reinstatement is sent to the correspondence address of record. The TRAM System and TSDR database are updated accordingly.

If the applicant is not entitled to reinstatement, a request for reinstatement may be considered as a petition to revive. Any petition to revive must meet all the requirements of 37 C.F.R. §2.66. See TMEP §§1714 et seq.

A registrant may file a request to reinstate a cancelled or expired registration if the registrant has proof that a USPTO error caused a registration to be cancelled or expired due to failure to file a §8 affidavit, §71 affidavit, §9 renewal application, or a response to an examiner’s Office action refusing to accept an affidavit or renewal application. There is no fee for a request for reinstatement. To ensure proper routing and processing, the Office prefers that the request be filed electronically. In TEAS, the proper form to request reinstatement of a registration is the "Request for Reinstatement," which can be accessed by clicking on the link entitled "Petition Forms" at http://www.uspto.gov.

The following are examples of situations where the USPTO may reinstate a cancelled or expired registration:

1. (1) The registrant presents proof that a proper affidavit or renewal application was timely filed through TEAS, in the form of a copy of a TEAS "Success" page confirming receipt of the document (see TMEP §303.02(a)) or a copy of an e-mail confirmation issued by the USPTO that includes the date of receipt and a summary of the TEAS submission.
2. (2) There is an image of a timely filed affidavit, renewal application, or response to Office action in TICRS.
3. (3) The timely filed affidavit, renewal application, or response to Office action is found in the USPTO.
4. (4) The registrant supplies a copy of the affidavit, renewal application, or response to Office action, with proof that it was timely mailed to the USPTO in accordance with the certificate of mailing requirements of 37 C.F.R. §2.197 (for the specific requirements for providing proof, see TMEP §305.02(f)).
5. (5) The registrant supplies a copy of the affidavit, renewal application, or response to Office action, with proof that it was timely transmitted to the USPTO by fax in accordance with the certificate of transmission requirements of 37 C.F.R. §2.197 (for the specific requirements for providing proof, see TMEP §306.05(d)).
6. (6) The registrant presents proof of actual receipt in the USPTO in the form of a return postcard showing a timely USPTO date stamp or label, on which the registrant specifically refers to the §8 affidavit, §71 affidavit, §9 renewal application, or response (see TMEP §303.02(c)).
7. (7) The registrant presents proof of actual receipt in the USPTO in the form of evidence that a USPTO employee signed for or acknowledged the envelope (e.g., a certified mail receipt that bears a USPTO date stamp or label, or the signature of a USPTO employee), accompanied by an affidavit or declaration under 37 C.F.R. §2.20 attesting to the contents of the envelope.
8. (8) The document that became lost was accompanied by a fee, and there is proof that the USPTO processed the fee (e.g., a cancelled check). The registrant must submit an affidavit or declaration under 37 C.F.R. §2.20 attesting to the contents of the original filing.
9. (9) The USPTO sent an Office action to the wrong address due to a USPTO error, i.e., the USPTO either entered the correspondence address incorrectly or failed to enter a proper notice of change of address filed before the issuance date of the action.
10. (10) The registrant supplies a copy of a response to a Post Registration Office action, with proof that it was timely transmitted to the USPTO by Internet e-mail and accompanied by a certificate of transmission under 37 C.F.R. §2.197. See notice at 64 Fed. Reg. 33056, 33063 (June 21, 1999). NOTE: Section 8 affidavits, §71 affidavits, and §9 renewal applications cannot be filed by e-mail. TMEP §304.02.

Generally, where there is proof that a registration was cancelled solely due to USPTO error, a request for reinstatement will not be denied solely because the registrant was not diligent in monitoring the status of the affidavit or renewal application. However, if a registrant receives a written notice of cancellation, or has actual notice that a registration was cancelled, the USPTO will deny the request for reinstatement as untimely if it was not filed: (1) within two months of the issuance date of the cancellation notice; or (2) within two months of actual notice of cancellation, if the registrant did not receive a written cancellation notice. 37 C.F.R. §2.146(d). See TMEP §1705.04 regarding timeliness.

The Director has no authority to waive a statutory requirement, such as the deadline for filing a proper renewal application under 15 U.S.C. §1059 or affidavit of use of a registered mark under 15 U.S.C. §1058. Checkers Drive-In Restaurants Inc. v. Comm'r of Patents and Trademarks., 51 F.3d 1078, 1085, 34 USPQ2d 1574, 1581 (D.C. App. 1995), cert. denied 516 U.S. 866 (1995); In re Holland Am. Wafer Co., 737 F.2d 1015, 222 USPQ 273 (Fed. Cir. 1984). Therefore, if the registrant did not timely file a §8 affidavit, §71 affidavit, or §9 renewal application, a request to reinstate a cancelled or expired registration will be denied, regardless of the reason for the delay.

If a registrant failed to timely respond to an examiner’s Office action refusing to accept a §8 affidavit, §71 affidavit, or §9 renewal application due to an extraordinary situation, but the registrant does not have the proof of USPTO error that would support a request for reinstatement, the registrant may file a formal petition under 37 C.F.R. §§2.146(a)(3) and 2.146(a)(5) to waive a rule and accept a late response. Pursuant to 37 C.F.R. §2.146(d), the petition must be filed within two months of the cancellation notice. If the registrant did not receive the cancellation notice, or no cancellation notice was issued, the petition must be filed within two months of the date of actual notice of the cancellation, and the record must show that the registrant was diligent in monitoring the status of the registration, pursuant to 37 C.F.R. §2.146(i). See TMEP §§1705.04 and 1705.05 regarding timeliness and diligence.

The unintentional delay standard of 37 C.F.R. §2.66 does not apply to registered marks. TMEP §1714.01(f)(ii). Under 37 C.F.R. §§2.146(a)(5) and 2.148, the Director may waive any provision of the rules that is not a provision of the statute, only when an extraordinary situation exists, justice requires, and no other party is injured. See TMEP §1708. The failure to receive an Office action is considered an extraordinary situation that justifies a waiver of a rule. Therefore, if the registrant did not receive an examiner’s Office action refusing to accept an affidavit or renewal application, but the registrant does not have proof that non-receipt was due to USPTO error (see TMEP §1712.02(a), paragraph 9), the registrant may file a formal petition under 37 C.F.R. §2.146.

As noted in TMEP §1708, the Director has no authority to waive a statutory requirement, such as the deadline for filing a proper renewal application under 15 U.S.C. §1059 or affidavit of use of a registered mark under 15 U.S.C. §1058. Therefore, if the registrant did not timely file a §8 affidavit, §71 affidavit, §9 renewal application, a petition to extend or waive the statutory deadline will be denied, regardless of the reason for the delay.

If a registrant contends that a proper affidavit or renewal application was timely filed, but the registrant does not have proof that the affidavit or renewal application was received in the USPTO before the due date, the Director will not grant a petition to accept the affidavit or renewal application.

Similarly, if a registrant files a premature affidavit or renewal application, and does not file a newly executed affidavit or renewal application within the statutory filing period (which includes the grace period), the Director will not grant a petition to accept the premature affidavit or renewal application. See TMEP §§1604.04(a) and 1606.03(a).