If you have a patent that expired because of the 20 year life of the patent and entered into an infrindgememt suite 6 months before the patent ended and have just learned after 21 years I should have filed for large entity status for issue and maintenance fees is it to late under CFR 1.28(C) to go back and pay the large entity fee now?
Stumped
The referenced reg says small entity fees paid in error but in good faith can be corrected. It doesn't say when or how late this can be corrected.
You might also want to see § 1.378 which discusses late payment of maintenance fees, even after expiration of patent. Petition must be made to show unavoidable or unintentional delay. But it may turn on when your patent was no longer actually entitled to small entity status and how that status was established. (see also MPEP 509.03, particularly all the way at the bottom - link and quote of last para:
http://www.uspto.gov/web/offices/pac/mpep/documents/0500_509_03.htm).
- A maintenance fee improperly paid as a small entity where small entity status has been established but is no longer appropriate will be treated as a matter under 37 CFR 1.28(c) and will not be considered to involve expiration of the patent under 37 CFR 1.378. On the other hand, payment of a maintenance fee in the small entity amount where small entity status has not been established would result in the expiration of the patent under 37 CFR 1.378 unless the full maintenance fee due or a written assertion of small entity status is timely filed.
If you're currently in an infringement suit, don't you have counsel?[/list]
EDIT: Below linked is a case relatively close that does a fair job of discussing the issues. Patentee plaintiff failed to correct to large entity status and paid small entity for all 3 maintenance fees. This was discovered during litigation and corrected a couple years prior to patent expiration (this being the part unlike your case). The district court held the patent invalid, but the CAFC reversed - not necessarily saying the patent should not be found invalid, but at least because the defendant had not quite met its burden under the "clear & convincing" standard that the plaintiff had intended to deceive the PTO when paying the small entity fees. I don't know what happened after it was sent back down to the district court for more findings of fact on the intent question.
http://openjurist.org/351/f3d/1139/ulead-systems-inc-v-lex-computer-and-management-corp
