Aristocrat Tech. v. Intââ?¬â?¢l Game Tech. (PDF) Judge Jenkins Decided June 13, 2007 Plaintiffs filed a PCT application related to electronic gaming machines. The deadline for filing the US fee for the national stage of the application was Jan. 10, 2000. The USPTO received the fee on Jan. 11, 2000. As such, the application was deemed ABANDONED due to failure to pay the basic national fee on time. Plaintiffs filed a petition to correct this. They claimed the delay was ââ?¬Å?unintentional.ââ?¬Â? The USPTO revived the patent. When plaintiffs asserted the patent against International Game Tech (IGT), ITG claimed the patent was invalid due to abandonment. IGT argued the correct standard was not ââ?¬Å?unintentional,ââ?¬Â? but ââ?¬Å?unavoidableââ?¬Â? as set forth in 35 USC 133 and 371. Plaintiffs argued:

[T]hat the PTO had authority to accept the petition to revive the allegedly abandoned [patent] application under the ââ?¬Å?unintentionalââ?¬Â? prong of 37 CFR Ã?§ 1.137(b). As further support for the existence of PTO discretion in reviving patent applications, Plaintiffs contend that Section 41(a)(7) specifically empowers the PTO with the discretion to revive ââ?¬Å?unintentionallyââ?¬Â? abandoned patent application.

After thorough analysis, Judge Jenkins held that the proper standard was ââ?¬Å?unavoidableââ?¬Â? and, therefore, the USPTO improperly granted the petition for revival of the patent. The patent was invalid because it was abandoned. What a difference a day makes!

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