What happens if you miss a patent maintenance fee payment?

Missing a patent maintenance fee deadline is more common than you might think, and the consequences can be serious. If you're managing your IP portfolio across multiple countries or with long patent lifecycles, keeping track of fee deadlines can quickly become overwhelming. 

In many jurisdictions, you're not completely out of options if a deadline slips by. This article explains exactly what happens after a missed patent maintenance fee payment, what recovery looks like in the US and Europe, and how you can avoid it altogether.

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Understanding patent maintenance fees
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Patent maintenance refers to the ongoing legal requirement to pay patent maintenance fees to keep a patent valid and enforceable. These fees must be paid at specific intervals, which vary depending on the country. For example:

• In the United States, patents require maintenance fees at 3.5, 7.5, and 11.5 years after grant.
• In Europe, most countries require annual renewal fees starting from year 3 of the patent grant date.

For detailed country-specific information, explore our renewal fee pages. Get more information on patent maintenance fee schedules, due dates, local currencies, and official fee amounts for each jurisdiction.

Missing these patent maintenance fee payments can result in the loss of your patent rights, either temporarily or permanently. But not all is lost immediately after the due date.

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Missing a patent maintenance fee deadline
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If you forget to make a patent maintenance fee payment by the deadline, your patent doesn't necessarily lapse that same day. In most jurisdictions, a grace period automatically follows the deadline, during which you can still pay, usually with an additional fee. Find more information about grace periods here. 

For instance:

• The USPTO maintenance fee system includes a 6-month grace period after each scheduled due date. During this time, you can still pay the required fee plus a surcharge
• Similarly, most European countries allow a 6-month grace period to pay the renewal fee with a late payment penalty.

However, once this grace period passes, the consequences become more severe, and recovering your rights becomes significantly harder.

In many jurisdictions, the surcharge applied during the grace period may follow either a fixed or escalating model. For instance, a fixed surcharge of €100 per month may be applied for each month past the original deadline.

While the grace period may offer a legal cushion, delaying your patent maintenance fee payment can result in a much larger financial burden. 

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Grace periods in Europe‍

The grace period structure vary widely by country. While most follow a 6-month post-deadline grace period (e.g., Germany, France, the UK), some countries like Albania or Georgia may offer longer or different reinstatement terms.

Because of this variation, it's essential to have a systematic overview of your portfolio's timelines, especially for multinational filers.

However, not all jurisdictions offer this flexibility. In some countries, failing to pay the maintenance fee by the due date results in immediate loss of rights, with no reinstatement options. This makes it essential to understand local rules or work with an IP renewal provider that tracks regional variations for you.

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What happens after the grace period ends?

When the grace period expires and the patent maintenance fee payment is still not made, the patent is considered lapsed or abandoned. In legal terms, this usually means:

• The patent owner loses exclusive rights.
• Third parties may be free to use the invention.
• The patent status changes in national or regional databases (e.g., EPO Register, USPTO PAIR) to reflect the lapse.

While a lapse is serious, some jurisdictions offer additional legal remedies, but the window of opportunity narrows, and the requirements become stricter.

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How to save a lapsed patent

In the United States (USPTO)

If you miss both the deadline and the grace period for a USPTO maintenance fee, you can still file a petition to revive a patent based on an "unintentional delay".

Here’s how it works:

• You must submit a Petition to Accept Late Payment of Maintenance Fee.

The petition must include:

• Signature by an attorney or agent registered to practice before the USPTO
• Payment of the required maintenance fee. 
• Payment of the required petition fee.
• And a statement that the delay was unintentional

Importantly, if the delay exceeds two years, the USPTO may require a detailed explanation of why the patent maintenance fee payment was missed to determine whether it was truly unintentional.

Approval is not guaranteed, and during the lapse period, the patent rights are unenforceable.

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In Europe (EPO and EPC countries)

In Europe, the equivalent of revival is called the re-establishment of rights through a process known as restitutio in integrum.

To qualify, you must:

• Prove that you took “all due care required by the circumstances” to pay on time
• File the request within two months of discovering the missed patent maintenance fee deadline 
• Submit it no later than 12 months from the original missed date

If granted, the patent is restored retroactively, meaning rights are reinstated as if the lapse never occurred. This applies both at the European Patent Office level and in many national patent offices under the European Patent Convention.

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How to avoid missing  patent maintenance deadlines

The easiest way to avoid missed patent maintenance fee deadlines is to automate the process. While it sounds simple, many patentees still rely on outdated or manual tracking systems that are prone to error.

Here are a few practical tips:

• Use a patent renewal management platform that automates patent maintenance fee payments across jurisdictions.
• Set early alerts for upcoming deadlines
• Keep payment methods and legal representatives up to date, especially for countries requiring local agents.
• Include patent maintenance budgeting in your long-term IP strategy to prevent lapses due to cost concerns.
  

Remember that missing a deadline isn’t just an administrative hiccup, it can mean the end of your hard-earned exclusivity.

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How PatentRenewal.com helps with your patent maintenance

At PatentRenewal.com, we support our customers throughout the entire patent maintenance timeline, including the surcharge period. If you’ve missed a deadline, forgotten to act, or your current provider failed to alert you, we can still manage the IP renewal on your behalf. 

Our platform automatically sends a Surcharge Instruction Request for all overdue cases each month, followed by up to three reminders. And if you initially decide not to renew a patent but later change your mind, our team can help complete the IP renewal within the grace period, including handling any applicable surcharges.

If you decide to proceed, simply notify us by email, and we’ll issue a deposit request or invoice that includes the applicable surcharge.

We help patent holders avoid this stress entirely by automating patent, trademark, design, and utility model renewals across the globe while saving them up to 40% on their patent maintenance costs.

Visit our solution for more information.