constructive abandonment

1.Patents. The closing of a patent-application prosecution by the
U.S. Patent and Trademark Office when an applicant fails to respond to an office action within the
time allowed, usu. six months, or fails to pay an issue fee. • If the delay was unintentional or
unavoidable, the application may be revived. [Cases: Patents 107. C.J.S. Patents §§ 157–158.]
2.Patents. Abandonment of an invention by operation of law regardless of the inventor’s intention,
such as when the inventor forfeits the right to patent by selling or offering to sell the invention or
by describing it in a publication more than a year before seeking patent protection. 35 USCA §
102. [Cases: Patents 80. C.J.S. Patents §§ 105–106, 108–111.] 3.Trademarks. An owner’s loss of
trademark protection, regardless of whether the mark is registered, by allowing the mark to lose its
distinctiveness, such as by letting the name become a generic term for that type of goods, or by
otherwise failing to maintain the mark’s distinctive character. • For example, licensing the use of
the mark without retaining control over how it is used would result in constructive abandonment.
— Also termed abandonment by operation of law. [Cases: Trade Regulation 76. C.J.S.
Trade-Marks, Trade-Names, and Unfair Competition §§ 222–224.]
express abandonment.Patents. An applicant’s intentional and clear termination of a patent
prosecution. • An express abandonment must be made in a signed writing and received by the U.S.
Patent and Trademark Office in time for the Office to act before the patent issues. Once an
application is expressly abandoned, it cannot be revived, and the applicant cannot preclude the
public from freely availing itself of the invention’s benefits. Abandonment of a patent application
does not result in abandonment of the invention. — Also termed formal abandonment. [Cases:
Patents 107. C.J.S. Patents §§ 157–158.]

[Blacks Law 8th]